Law Empowerment Principles in the Time of Coronavirus
Principle Three – Leases: Sword and Shield
By Sheyna Burt, Esq.,
Nothing breeds anxiety quite like the feeling
of helplessness. Conversely, nothing relieves anxiety quite like finding, claiming, and using your power. This applies to life and to law.
In this series of articles, we will explore various “Law Empowerment Principles in the Time of Coronavirus,” things you can do during this period of upheaval to take control of what is within your control. Note that these articles are not intended to be legal advice and should not be received as such. Consult an attorney to discuss your specific situation and legal needs.
In this piece, we will take on Principle Three – Leases: Sword and Shield.
Among the definitions of “sword” included in Merriam-Webster’s online edition is “an instrument of destruction or combat.” For many tenants, that’s exactly what a lease can feel like – a sharp weapon written by landlords to benefit landlords at the tenant’s expense. True enough, laws like the Virginia Residential Landlord and Tenant Act (“VRLTA”) may establish the rules of war, but ultimately, the lease is sharp on both sides and difficult to overcome.
Tenants may be feeling especially vulnerable at this time. Unemployment is high and wages are unreliable. There is empowering news for tenants, however. By the miracle of modern weaponry, i.e., a few well-timed orders, leases are not only swords for landlords, they are powerful shields for tenants. And not just any shield: we’re talking a Captain America, Wakandan Vibranium shield.
As a consequence of Coronavirus-inspired closures, tenants are protected temporarily from eviction. The Virginia Supreme Court closed the General District and Circuit Courts to everything except emergency and certain criminal matters through April. It is likely that this closure will be extended as the Governor’s stay-at-home order remains in effect and the Commonwealth works to control the spread of the virus. Tenants who have a lease cannot be evicted at this time – no eviction is possible without the appropriate court order, no writ of eviction or writ of possession order is possible without a court hearing, and no court hearing is possible until the courts reopen. Note that by virtue of the VRLTA this also applies to individuals who are living as their primary residence in a hotel, motel, extended stay facility, vacation residential facility, or boardinghouse for more than ninety days. This shield even protects against landlord funny business (a technical, legal term) – a landlord cannot turn off necessary utilities or change the locks to indirectly force a tenant to leave.
"By the miracle of modern weaponry, i.e., a few well-timed orders, leases are not only swords for landlords, they are powerful shields for tenants."
That shield also protects a tenant’s privacy. If a tenant has reason to believe he or she has been infected with COVID-19, there is no legal obligation to tell the landlord. The moral obligation is another story, as one person’s right to privacy could be another person’s unknowing exposure. A landlord who is not informed about a tenant’s infection might inadvertently schedule a walk through by a future tenant or send in an unsuspecting contractor. An honest dialogue about exposure risks can result in imaginative alternatives (e.g., a virtual visit) without compromising the tenant’s reasonable expectation of privacy.
Shields are not indestructible. Even during the mandated court closure, a landlord can begin the eviction process by sending a five-day demand to pay/cure or quit and he or she can terminate the lease. The landlord would then file a suit for enforcement when the courts reopen.
Eventually, we will emerge from the ordered isolation and tenants should have a plan in place, negotiated with the landlord, to resolve any disputes … a sort of peace treaty. If a layoff or furlough has made paying rent an issue, the parties should work out a repayment schedule that either defers the payment due date or allows the tenant to spread out the payments over time. Some entities, such as Arlington County and the National Apartment Association, are actively encouraging landlords to minimize financial hardships to tenants. If the landlord has alleged a different type of breach, say, property damage or the presence of a pet, the tenant can use this forced period of détente to cure the breach and/or renegotiate the sticky provisions. This is not a moment for a tenant to stick his or her head in the sand, ostrich-style; communication with the landlord is paramount.
Of course, leases can be both sword and shield for the mutual benefit of both parties … a weapon for good. The lease can be amended to adopt flexible policies to allow virtual payments or a special drop box in lieu of hand delivery to a rental office. Landlords can postpone renewals and rate increases and/or offer timely payment incentives in the form of gift cards or special offers valid when social distancing rules have been eased. The parties can use this found time of away-togetherness to build community in the form of online book clubs, health competitions, recipe exchanges, online gaming, photo scavenger hunts, shared music playlists, and virtual tutoring and group lessons.
Sometimes the best offense actually is a really good defense. Tenants who are feeling that their landlords are wielding their leases like a sword should remember and take full advantage of the shields built into the system.
Check Back for Principle Four – Homeowners and Condominium Association Superheroes
Sheyna N. Burt, Esq., Attorney and Owner of The Law Office of Sheyna Nicole Burt, PLC, www.burtlaw.co, email@example.com, 571-659-2871