Can I Not Refund the Security Deposit for A Breach of Lease by Tenant Smoking?
Full Question:
Answer:
If a lease prohibits smoking in the premises, smoking in the premises will be a breach of the lease. It is possible for a landlord to withhold amounts from a security deposit for damages due to noncompliance with a rental agreement or the tenant's failure to comply with tenant obligations, as specified in the statue below. If the lease specifies a fine for smoking, that fine may be deducted from a security deposit. If the tenant's smoking causes damage, such burn marks, tampering with a smoke detector, etc., such damages may be deducted from a security deposit. If the lease doesn't specify damages that may be recovered for smoking, and the smoking doesn't cause damage, the fact of smoking in violation of lease terms alone does not entitle a landlord to deduct from a security deposit.
The following are VA statutes:
§ 55-248.15:1. Security deposits. —
A. A landlord may not demand or receive a security deposit, however
denominated, in an amount or value in excess of two months' periodic
rent. Upon termination of the tenancy, such security deposit, whether it
is property or money, plus any accrued interest thereon, held by the
landlord as security as hereinafter provided may be applied solely by the
landlord
(i) to the payment of accrued rent and including the reasonable
charges for late payment of rent specified in the rental agreement;
(ii)
to the payment of the amount of damages which the landlord has suffered
by reason of the tenant's noncompliance with § 55-248.16, less reasonable
wear and tear; or
(iii) to other damages or charges as provided in the
rental agreement. The security deposit, any accrued interest and any
deductions, damages and charges shall be itemized by the landlord in a
written notice given to the tenant, together with any amount due the
tenant within 45 days after termination of the tenancy and delivery of
possession.
Nothing in this section shall be construed by a court of law or
otherwise as entitling the tenant, upon the termination of the tenancy,
to an immediate credit against the tenant's delinquent rent account in
the amount of the security deposit. The landlord shall apply the security
deposit in accordance with this section within the 45-day time period.
The landlord shall notify the tenant in writing of any deductions
provided by this subsection to be made from the tenant's security deposit
during the course of the tenancy. Such notification shall be made within
30 days of the date of the determination of the deduction and shall
itemize the reasons in the same manner as provided in subsection B. Such
notification shall not be required for deductions made less than 30 days
prior to the termination of the rental agreement. If the landlord
willfully fails to comply with this section, the court shall order the
return of the security deposit and interest thereon to the tenant,
together with actual damages and reasonable attorneys' fees, unless the
tenant owes rent to the landlord, in which case, the court shall order an
amount equal to the security deposit and interest thereon credited
against the rent due to the landlord. In the event that damages to the
premises exceed the amount of the security deposit and require the
services of a third party contractor, the landlord shall give written
notice to the tenant advising him of that fact within the 45-day period.
If notice is given as prescribed in this paragraph, the landlord shall
have an additional 15-day period to provide an itemization of the damages
and the cost of repair. This section shall not preclude the landlord or
tenant from recovering other damages to which he may be entitled under
this chapter. The holder of the landlord's interest in the premises at
the time of the termination of the tenancy, regardless of how the
interest is acquired or transferred, is bound by this section and shall
be required to return any security deposit received by the original
landlord and any accrued interest that is duly owed to the tenant,
whether or not such security deposit is transferred with the landlord's
interest by law or equity, regardless of any contractual agreements
between the original landlord and his successors in interest.
B. The landlord shall:
1. Accrue interest at an annual rate equal to four percentage points
below the Federal Reserve Board discount rate as of January 1 of each
year on all property or money held as a security deposit. However, no
interest shall be due and payable unless the security deposit has been
held by the landlord for a period exceeding 13 months after the effective
date of the rental agreement or after the effective date of any prior
written or oral rental agreements with the same tenant, for continuous
occupancy of the same dwelling unit, such security deposit earning
interest which begins accruing from the effective date of the rental
agreement, and such interest shall be paid only upon termination of the
tenancy, delivery of possession and return of the security deposit as
provided in subsection A;
2. Maintain and itemize records for each tenant of all deductions from
security deposits provided for under this section which the landlord has
made by reason of a tenant's noncompliance with § 55-248.16 during the
preceding two years; and
3. Permit a tenant or his authorized agent or attorney to inspect such
tenant's records of deductions at any time during normal business hours.
C. Upon request by the landlord to a tenant to vacate, or within five
days after receipt of notice by the landlord of the tenant's intent to
vacate, the landlord shall make reasonable efforts to advise the tenant
of the tenant's right to be present at the landlord's inspection of the
dwelling unit for the purpose of determining the amount of security
deposit to be returned. If the tenant desires to be present when the
landlord makes the inspection, he shall so advise the landlord in writing
who, in turn, shall notify the tenant of the time and date of the
inspection, which must be made within 72 hours of delivery of
possession. Upon completion of the inspection attended by the tenant, the
landlord shall furnish the tenant with an itemized list of damages to the
dwelling unit known to exist at the time of the inspection.
D. If the tenant has any assignee or sublessee, the landlord shall be
entitled to hold a security deposit from only one party in compliance
with the provisions of this section.
§ 55-248.16. Tenant to maintain dwelling unit. —
A. In addition to the provisions of the rental agreement,
the tenant shall:
1. Comply with all obligations primarily imposed upon
tenants by applicable provisions of building and housing
codes materially affecting health and safety;
2. Keep that part of the premises that he occupies and uses
as clean and safe as the condition of the premises permit;
3. Remove from his dwelling unit all ashes, garbage,
rubbish and other waste in a clean and safe manner and in
the appropriate receptacles provided by the landlord
pursuant to § 55-258.13, if such disposal is on the
premises;
4. Keep all plumbing fixtures in the dwelling unit or used
by the tenant as clean as their condition permits;
5. Use in a reasonable manner all utilities and all
electrical, plumbing, sanitary, heating, ventilating,
air-conditioning and other facilities and appliances
including elevators in the premises, and keep all utility
services paid for by the tenant to the utility service
provider or its agent on at all times during the term of the
rental agreement;
6. Not deliberately or negligently destroy, deface, damage,
impair or remove any part of the premises or permit any
person to do so whether known by the tenant or not;
7. Not remove or tamper with a properly functioning smoke
detector installed by the landlord, including removing any
working batteries, so as to render the detector inoperative;
8. Not remove or tamper with a properly functioning carbon
monoxide detector installed by the landlord, including
removing any working batteries, so as to render the carbon
monoxide detector inoperative;
9. Use reasonable efforts to maintain the dwelling unit and
any other part of the premises that he occupies in such a
condition as to prevent accumulation of moisture and the
growth of mold, and to promptly notify the landlord of any
moisture accumulation that occurs or of any visible evidence
of mold discovered by the tenant;
10. Be responsible for his conduct and the conduct of other
persons on the premises with his consent whether known by
the tenant or not, to ensure that his neighbors' peaceful
enjoyment of the premises will not be disturbed; and
11. Abide by all reasonable rules and regulations imposed
by the landlord pursuant to § 55-248.17.
B. If the duty imposed by subdivision 1 of subsection A is
greater than any duty imposed by any other subdivision of
that subsection, the tenant's duty shall be determined by
reference to subdivision 1.
§ 55-248.31. Noncompliance with rental agreement; monetary
penalty. —
A. Except as provided in this chapter, if there is a
material noncompliance by the tenant with the rental
agreement or a violation of § 55-248.16 materially affecting
health and safety, the landlord may serve a written notice
on the tenant specifying the acts and omissions constituting
the breach and stating that the rental agreement will
terminate upon a date not less than 30 days after receipt of
the notice if the breach is not remedied in 21 days, and
that the rental agreement shall terminate as provided in the
notice.
B. If the breach is remediable by repairs or the payment of
damages or otherwise and the tenant adequately remedies the
breach prior to the date specified in the notice, the rental
agreement shall not terminate.
C. If the tenant commits a breach which is not remediable,
the landlord may serve a written notice on the tenant
specifying the acts and omissions constituting the breach
and stating that the rental agreement will terminate upon a
date not less than 30 days after receipt of the notice.
Notwithstanding anything to the contrary contained elsewhere
in this chapter, when a breach of the tenant's obligations
under this chapter or the rental agreement involves or
constitutes a criminal or a willful act, which is not
remediable and which poses a threat to health or safety, the
landlord may terminate the rental agreement immediately and
proceed to obtain possession of the premises. For purposes
of this subsection, any illegal drug activity involving a
controlled substance, as used or defined by the Drug Control
Act (§ 54.1-3400 et seq.), by the tenant, the tenant's
authorized occupants, or the tenant's guests or invitees,
shall constitute an immediate nonremediable violation for
which the landlord may proceed to terminate the tenancy
without the necessity of waiting for a conviction of any
criminal offense that may arise out of the same actions. In
order to obtain an order of possession from a court of
competent jurisdiction terminating the tenancy for illegal
drug activity or for any other action that involves or
constitutes a criminal or willful act, the landlord shall
prove any such violations by a preponderance of the
evidence. However, where the illegal drug activity is
engaged in by a tenant's authorized occupants, or guests or
invitees, the tenant shall be presumed to have knowledge of
such illegal drug activity unless the presumption is
rebutted by a preponderance of the evidence. The initial
hearing on the landlord's action for immediate possession of
the premises shall be held within 15 calendar days from the
date of service on the tenant; however, the court shall
order an earlier hearing when emergency conditions are
alleged to exist upon the premises which constitute an
immediate threat to the health or safety of the other
tenants. After the initial hearing, if the matter is
scheduled for a subsequent hearing or for a contested trial,
the court, to the extent practicable, shall order that the
matter be given priority on the court's docket. Such
subsequent hearing or contested trial shall be heard no
later than 30 days from the date of service on the tenant.
During the interim period between the date of the initial
hearing and the date of any subsequent hearing or contested
trial, the court may afford any further remedy or relief as
is necessary to protect the interests of parties to the
proceeding or the interests of any other tenant residing on
the premises. Failure by the court to hold either of the
hearings within the time limits set out herein shall not be
a basis for dismissal of the case.
D. If the tenant is a victim of family abuse as defined in
§ 16.1-228 that occurred in the dwelling unit or on the
premises and the perpetrator is barred from the dwelling
unit pursuant to § 55-248.31:01 based upon information
provided by the tenant to the landlord, or by a protective
order from a court of competent jurisdiction pursuant to
§ 16.1-253.1, 16.1-279.1, or subsection B of § 20-103, the
lease shall not terminate due solely to an act of family
abuse against the tenant. However, these provisions shall
not be applicable if
(i) the tenant fails to provide written
documentation corroborating the tenant's status as a victim
of family abuse and the exclusion from the dwelling unit of
the perpetrator no later than 21 days from the alleged
offense or
(ii) the perpetrator returns to the dwelling unit
or the premises, in violation of a bar notice, and the
tenant fails promptly to notify the landlord within 24 hours
thereafter that the perpetrator has returned to the dwelling
unit or the premises, unless the tenant proves by a
preponderance of the evidence that the tenant had no actual
knowledge that the perpetrator violated the bar notice, or
it was not possible for the tenant to notify the landlord
within 24 hours, in which case the tenant shall promptly
notify the landlord, but in no event more than 7 days
thereafter.
If the provisions of this subsection are not
applicable, the tenant shall remain responsible for the acts
of the other co-tenants, authorized occupants or guests or
invitees pursuant to § 55-248.16, and is subject to
termination of the tenancy pursuant to the lease and this
chapter.
E. If the tenant has been served with a prior written notice
which required the tenant to remedy a breach, and the tenant
remedied such breach, where the tenant intentionally commits
a subsequent breach of a like nature as the prior breach,
the landlord may serve a written notice on the tenant
specifying the acts and omissions constituting the
subsequent breach, make reference to the prior breach of a
like nature, and state that the rental agreement will
terminate upon a date not less than 30 days after receipt of
the notice.
F. If rent is unpaid when due, and the tenant fails to pay
rent within five days after written notice is served on him
notifying the tenant of his nonpayment, and of the
landlord's intention to terminate the rental agreement if
the rent is not paid within the five-day period, the
landlord may terminate the rental agreement and proceed to
obtain possession of the premises as provided in
§ 55-248.35. If a check for rent is delivered to the
landlord drawn on an account with insufficient funds and the
tenant fails to pay rent within five days after written
notice is served on him notifying the tenant of his
nonpayment and of the landlord's intention to terminate the
rental agreement if the rent is not paid by cash, cashier's
check or certified check within the five-day period, the
landlord may terminate the rental agreement and proceed to
obtain possession of the premises as provided in
§ 55-248.35. Nothing shall be construed to prevent a
landlord from seeking an award of costs or attorneys' fees
under § 8.01-27.1 or civil recovery under § 8.01-27.2, as a
part of other damages requested on the unlawful detainer
filed pursuant to § 8.01-126, provided the landlord has
given notice in accordance with § 55-248.6, which notice may
be included in the five-day termination notice provided in
accordance with this section.
G. Except as provided in this chapter, the landlord may
recover damages and obtain injunctive relief for any
noncompliance by the tenant with the rental agreement or
§ 55-248.16. The landlord shall be entitled to recover
reasonable attorneys' fees unless the tenant proves by a
preponderance of the evidence that the failure of the tenant
to pay rent or vacate the premises was reasonable. If the
rental agreement provides for the payment of reasonable
attorneys' fees in the event of a breach of the agreement or
noncompliance by the tenant, the landlord shall be entitled
to recover and the court shall award reasonable attorneys'
fees in any action based upon the tenancy in which the
landlord prevails, including but not limited to actions for
damages to the dwelling unit or premises, or additional
rent, regardless of any previous action to obtain possession
or rent, unless in any such action, the tenant proves by a
preponderance of the evidence that the tenant's failure to
pay rent or vacate was reasonable.
Virginia Code
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Virginia Code
Title 55. Property and Conveyances.
CHAPTER 13.2. VIRGINIA RESIDENTIAL LANDLORD AND TENANT ACT.
ARTICLE 3. Tenant Obligations.
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Page
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§ 55-248.16. Tenant to maintain dwelling unit. —
A. In addition to the provisions of the rental agreement,
the tenant shall:
1. Comply with all obligations primarily imposed upon
tenants by applicable provisions of building and housing
codes materially affecting health and safety;
2. Keep that part of the premises that he occupies and uses
as clean and safe as the condition of the premises permit;
3. Remove from his dwelling unit all ashes, garbage,
rubbish and other waste in a clean and safe manner and in
the appropriate receptacles provided by the landlord
pursuant to § 55-258.13, if such disposal is on the
premises;
4. Keep all plumbing fixtures in the dwelling unit or used
by the tenant as clean as their condition permits;
5. Use in a reasonable manner all utilities and all
electrical, plumbing, sanitary, heating, ventilating,
air-conditioning and other facilities and appliances
including elevators in the premises, and keep all utility
services paid for by the tenant to the utility service
provider or its agent on at all times during the term of the
rental agreement;
6. Not deliberately or negligently destroy, deface, damage,
impair or remove any part of the premises or permit any
person to do so whether known by the tenant or not;
7. Not remove or tamper with a properly functioning smoke
detector installed by the landlord, including removing any
working batteries, so as to render the detector inoperative;
monoxide detector inoperative;8. Not remove or tamper with a properly functioning carbon
monoxide detector installed by the landlord, including
removing any working batteries, so as to render the carbon
9. Use reasonable efforts to maintain the dwelling unit and
any other part of the premises that he occupies in such a
condition as to prevent accumulation of moisture and the
growth of mold, and to promptly notify the landlord of any
moisture accumulation that occurs or of any visible evidence
of mold discovered by the tenant;
10. Be responsible for his conduct and the conduct of other
persons on the premises with his consent whether known by
the tenant or not, to ensure that his neighbors' peaceful
enjoyment of the premises will not be disturbed; and
11. Abide by all reasonable rules and regulations imposed
by the landlord pursuant to § 55-248.17.
B. If the duty imposed by subdivision 1 of subsection A is
greater than any duty imposed by any other subdivision of
that subsection, the tenant's duty shall be determined by
reference to subdivision 1.
§ 55-248.35. Remedy after termination. —
If the rental agreement is terminated, the landlord may have a claim
for possession and for rent and a separate claim for actual damages for
breach of the rental agreement, reasonable attorney's fees as provided in
§ 55-248.31, and the cost of service of any notice under § 55-225
or § 55-248.31 or process by a sheriff or private process server
which cost shall not exceed the amount authorized by § 55-248.31:1,
which claims may be enforced, without limitation, by the institution of
an action for unlawful entry or detainer. Actual damages for breach of
the rental agreement may include a claim for such rent as would have
accrued until the expiration of the term thereof or until a tenancy
pursuant to a new rental agreement commences, whichever first occurs;
provided that nothing herein contained shall diminish the duty of the
landlord to mitigate actual damages for breach of the rental agreement.
In obtaining post-possession judgments for actual damages as defined
herein, the landlord shall not seek a judgment for accelerated rent
through the end of the term of the tenancy.
In any unlawful detainer action brought by the landlord, this
section shall not be construed to prevent the landlord from being granted by the
court a simultaneous judgment for money due and for possession of the
premises without a credit for any security deposit. Upon the tenant
vacating the premises either voluntarily or by a writ of possession,
security deposits shall be credited to the tenants' account by the
landlord in accordance with the requirements of § 55-248.15:1.