Breaking a Lease Legally in Virginia: The Ultimate Guide

The Terms of a Lease

The obligations of tenants under Virginia lease agreements are often straightforward. Tenants are generally required to do three basic things under their leases: Because lease obligations can vary in their complexity and scope, Virginia tenants should read their leases carefully in order to fully understand their obligations before they try to break them. Generally, leases are contracts that have broad discretion in terms of the terms they include . Therefore, landlords may insert clauses that require more involvement from the tenant than the items above. Common extra obligations include: Each of these potential lease requirements can create problems if they are not complied with. For example, even innocent breaches of a lease clause that requires the tenant to pay all utilities can result in liability for lost rent to the landlord. For this reason, it is important for tenants to exercise extreme care to ensure that they comply with all lease terms.

Legal Methods to Break a Lease in Virginia

Virginia law recognizes several legal justifications under which tenants can break a lease without incurring any penalties. Here are some instances in which a Virginia landlord’s unlawful actions or violations of the lease agreement may serve as sufficient grounds for breaking a lease. Normally, such actions or violations must be significant or substantial enough to qualify as a "material breach" of the lease in order for you to move out of the property without penalty.
Unsafe Living Conditions
You have a legal right to live in a property that is free from dangerous health or safety conditions. If you have ever viewed a property that has mold, a rodent or pest infestation or water leaks, you are probably familiar with unsafe conditions. If the property you are renting contains a habitability defect, you have the right to request that the tenant repair the property. In such a case, you are required to provide the landlord with written notice of the defect and at least 21 days to make the necessary repairs. Furthermore, tenants cannot legally live in a property that has no working smoke detectors or security devices. If you do have an unsafe living environment, you must give your landlord reasonable time to repair the property. If the landlord fails to repair, you must notify him or her that if the repairs are not undertaken, you will move out. After that, you can legally break your lease.
Domestic Violence
Virginia law allows victims of domestic abuse to break their lease and vacate the property. If you are a victim of domestic violence, you have the right to terminate your lease and move out of your rental property without incurring any penalties or liability. You will not be required to pay rent for any portion of the remaining lease, nor will you be held liable for any damages associated with the remaining term of your lease.
Military Duty
If you are a member of the military or a family member of a military member and you receive orders for a permanent change of station or deployment for more than three months, you have the right to break your lease. You must provide at least 30 days written notice to your landlord, along with a copy of your orders or military contract that shows your new duty location.
A Landlord’s Unlawful Breach
A Virginia court may allow you to break your lease and move out of your Virginia rental property if your landlord breaches the lease agreement without legal justification. Any attempt to evict a tenant by a landlord or property manager that does not follow the law is considered constructive eviction. It may also be considered a form of harassment of the tenant. By using "self help" methods to evict a tenant—such as changing the locks, turning off utility services such as electricity, gas or water or having the locks changed—the tenant can legally move out of the property without any penalties or fees.
Landlord Harassment
If your landlord constantly harasses you with late notices for rent that is not late, or constantly threatens you with eviction over missing rent payments when your rent is fully paid, you may have the right to break your lease. Constant contact from your landlord that makes it difficult for you to enjoy your peaceful use and possession of the rental property may be a form of tenant harassment that gives you the right to legally terminate your lease.

Notification: How and When to Break a Lease

To legally terminate your lease and leave without penalty, you must comply with Virginia law. Specifically, you must give proper notice as required by the lease and by statute. Notice requirements vary by statute, but almost every lease requires that tenants provide written notice.
If you have a lease for one year or longer, you must give 60 days’ written notice prior to the end of the term. You can give notice at any time, but if you do not, your lease will automatically continue month-to-month and you will then need to provide 30 days’ notice. Your 30 days’ notice does not need to correspond to a rent due date; rather, you can choose any date that works best for you.
If your term is not for a fixed duration (i.e., your lease is month-to-month), you are only required to give 30 days’ notice. As above, your 30 days’ notice does not need to correspond to a rent due date, but you must give 30 days’ notice from when you choose to send the notice. Neither a landlord nor tenant may waive the 30 days’ notice requirement, and the lease cannot contain a provision stating that no notice is required.
If you are breaking your lease due to domestic violence, require 30 days’ notice notice. A tenant who is a victim of family abuse may terminate a lease or rental agreement without penalty by providing the landlord with written notice of your intent to terminate and a copy of an ex parte protective order, or a protective order entered at a hearing at which the tenant received notice; or a conviction of the abuser for a violation of § 18.2-57.2 of the Code of Virginia.

Service Members on Military Duty

Virginia tenants who are classified as "service members" may be able to break a lease solely on the basis of their military classification. The Servicemembers Civil Relief Act (SCRA) grants certain essential rights to active duty and retired service members. SCRA protections include a grace period before a property owner can proceed with an eviction for nonpayment of rent due, for example, but military members and their spouses can also break a lease without penalty if they are classified as "service members."
For a service member to have the right to unilaterally terminate a lease, they must meet the following requirements:
• The lease must be for residential real property. Residential real property is defined as the unit being rented or occupied, and all appurtenances, furnishings, and appliances provided by the landlord to the tenant.
• The tenant must be a non-dependent, military service member or the spouse of a military service member.
• The tenant must be an active duty member of the U.S. Armed Forces or the member of the U.S. Foreign Service, Merchant Marines, Commissioned Corps of the Public Health Service, Commissioned Corps of the National Oceanic and Atmospheric Administration, or a member of the Virginia National Guard or Air National Guard when the Guard is called into service outside of the state as a result of a national emergency.
• The tenant’s military orders must be for a permanent change of station that will take effect while the lease is in effect, or the tenant must receive temporary duty orders but expects the temporary duty orders to last more than 30 days.
• The tenant must give advance notice of vacating the rental premises, according to either the lease agreement or the law.
The tenant terminates the lease by providing a written notice to the landlord that includes:
• A statement that the tenant is invoking the SCRA.
• The date the tenant plans to vacate the rental premises. The tenant must vacate no later than 30 days after delivery of the notice.
• A statement authorizing the landlord to deduct from the tenant’s security deposit the amount reasonably necessary for costs directly related to the re-letting of the dwelling unit.
There are a few important limitations to the SCRA right to terminate a lease. For one, the SCRA does not apply to mobile homes that are rented or leased separately from the land. Also, even if the SCRA applies, a landlord may still be free of any obligation for breach of the lease if the landlord suffers actual damages as a result of the premature termination. Finally, the SCRA provision for breaking a lease is inapplicable if the leased premises is owned by the individual tenant.

Cessation of Lease Through Negotiation

It is important to note that a landlord does not have to consent to the termination of a lease. However, many landlords are willing to negotiate along these lines. A residential tenant should first speak to his or her landlord about the possibility of terminating the lease. The tenant should probably do this as far in advance as possible, since most landlords will want to find a replacement tenant before letting the current tenant out of his or her lease early. Your lease may contain a clause explaining how to approach the landlord about early termination.
If you still have a security deposit, you should explain that you want to use it as the last month’s rent as part of the negotiations. In some cases, you can use the balance of your security deposit as the remainder of the monthly rent even where the tenancy terminates prior to the end of the month.
If the landlord is unwilling to let you out early, you can explore whether you have a good reason under Virginia law for terminating early and discuss with your landlord whether you could get out of the lease by paying some amount less than the remaining months of rent.
If a security deposit therein is not enough to cover the remaining rent due, discuss whether the landlord would be willing to accept monthly installment payments over the entire period that remains on the lease.
One way to make up for the lost rent for the landlord would be to assist him or her in finding a replacement tenant. Typically , you will give your landlord permission to show the apartment when you are not home and let him or her know when to do so. Be certain to take great care of the unit while it is being shown.
If you have a pet, offering to pay extra pet rent or pet deposit can be a signal that you are willing to negotiate and that you are a responsible tenant.
Although a landlord does not have to give you credit for a new tenant, this is something that you should discuss. If the rent is market rate or there are multiple other units vacant in that apartment building or complex, the landlord is likely to turn down the proposal. However, if you are negotiating with a private landlord who is having a tough time renting out the space, he or she may be more open to the idea.
Depending on the words of the lease, a landlord may be able to terminate the lease without penalizing the tenant if the tenant "abandon[s]" the unit. Attempting to fool a landlord into thinking that you have abandoned your unit would be very unwise. Not only would this put you at risk for a personal injury claim from a landlord (if he thinks someone else was in the dwelling and got hurt), you may also be suing for repair costs arising from your unit becoming damaged by the water when you left a faucet running and did not shut off the main water valve. A landlord can sue tenants for early termination of the lease and any expenses related to re-renting the unit.

Consequences of Illegally Breaking a Lease

The consequences of breaking a lease without satisfying its legal requirements in Virginia can be significant. Engaging in this behavior may:
o Subject the tenant to a civil suit for damages: A tenant who breaks a lease without satisfying its legal requirements may be subject to a civil suit for damages at the discretion of the landlord. If a court finds in favor of the landlord and awards damages, the judgment will become part of public record, which may make it difficult for the tenant to secure future housing should the landlord candidly divulge the judgment on its rental application forms.
o Mandate the loss of the tenant’s security deposit. The terms of a lease may stipulate the amount of notice required to terminate the lease, and omit such notice. Although the tenant has not broken the lease, the landlord can withhold the remaining security deposit to cover lost rent that may have been avoided by furnishing such notice.
o Require the tenant to vacate the premises when a commercial lease is involved. Contrary to residential leases, where the tenant can abandon the premises without breaking the lease and only lose his security deposit, a commercial lease may require the tenant to vacate the premises upon terminating the lease for any reason. If the tenant refuses to vacate the premises and the commercial lease stipulates that the tenant must vacate upon termination, the landlord may file a show cause motion and potentially seek possession of the premises. It will then be up to the tenant to persuade a judge that he has a sufficient factual and/or legal basis to break the lease even though a strict reading of the lease dictates otherwise.
o Require the tenant to pay the entire balance of rent due under the lease. This scenario usually occurs when a tenant decides to break a lease early, but fails to satisfy the legal conditions for doing so. For instance, a tenant may break his 10-month lease after 2 months owing 8 months’ rent, when a lease with those terms typically requires the tenant to stay in possession for the remaining 2 months, or pay rent through the remaining 2 months when he terminates his agreement to lease.

Accessing Small Claims Court and Settlement

In cases where a dispute arises that cannot be resolved between a landlord and a tenant, the case may go to trial. A tenant who breaks a lease agreement, along with the landlord, may need to commence the process of litigation through the small claims court. After attempting to resolve the issue with their landlord, a tenant may file a complaint directly with the General District Court and be scheduled for a court date. Under Virginia state law, small claims cases are originally filed in the General District Court, not through the circuit court.
Often a tenant and landlord dispute can be settled between the two parties without the need for a court date. A notice will be sent to the landlord if they do not answer a suit served by the sheriff’s department. Often this is the case because the landlord is aware of the case and does not wish to show up to court. The hearing will be held on the scheduled date if a tenant and landlord cannot reach an agreement before then. Small claims cases are heard on a regular basis in Virginia. During the court hearing, the parties are allowed to agree to stipulations in the case. There will be no jury present, and a judge will hear the testimony. The clerk will send a formal copy of the case judgment to each party by mail after the dispute is resolved, whether the judgment is made in the tenant’s or landlord’s favor. A landlord/tenant judgment can be appealed to the circuit court in Virginia. The tenant may have to pay court costs in the case, depending on the landlord’s request during the hearing. The costs may include the fee to file the suit and the cost of having the sheriff’s department serve the summons. However, if the case is successful, the tenant may be awarded their legal fees and court costs back on the judgment, plus the amount requested in the lawsuit.

Attaining Legal Help

Seeking legal advice or assistance is an important step that should not be overlooked and should be part of the breaking lease equation. A consultation with an attorney may be especially beneficial when you plan to break a lease you have not yet signed but would like to break a lease that you have already signed. If you have already signed the lease but are facing circumstances that you believe allow you to break the lease without penalty , a consultation with an attorney may be necessary if the landlord is unwilling to work with you. Ultimately, you will be the one who has to bear those consequences, so it is wise to consult with a Virginia real estate attorney about the ramifications of breaking a lease.