How does a landlord terminate a lease when a tenant isn’t paying rent?
In Virginia, the law is clear that landlords can terminate residential leases for multiple reasons. These include situations such as a tenant not paying rent, when a tenant violates terms of the lease, when the landlord is serving in the military and returns to occupy the home, and others. There are procedural requirements and in some instances there are requirements for leases to address these.
It is important to understand the case-by-case circumstances of “not paying rent”. Is the tenant not paying rent at all? Is the tenant not paying rent on time yet still pays? Is the tenant submitting partial rent payments where there may be one payment submitted on time and one or more submitted late during the month? Is the tenant trying to pay rent, but it isn’t being delivered because the landlord’s, the property manager’s, payment platform or phone app is not functioning or there is a delay in the ACH transfer between financial institutions?
For this discussion, let’s say that the tenant is deliberately choosing not to pay rent on time. This can mean a refusal to pay any rent or even a choice to pay rent late in full or in part.
Per Virginia statute, rent is due on the first day of the month. Period. When rent is paid on the 2nd day of the month or later, it is late. When a tenant pays partial rent by the first of the month, only the remaining balance is considered late. For example, say rent is $2000 and $1500 is paid on the first of the month. In this scenario, $500 is late and the tenant is still be in default which means the lanldord can still take action against the tenant. Landlords and tenants can agree to a different payment schedule where rent can be due on a different day. Landlords and tenants can also agree for rent to be paid at different periodicities such as every other month, quarterly, etc. Any agreements for rent to be paid other than on the first day of the month must be codified in the lease, otherwise rent is due monthly on the first day of the month per Virginia statute.
When a tenant is not paying rent as required (i.e., not paying rent on time or at all), a landlord, or the landlord’s agent on the landlord’s behalf per their Property Management Agreement, delivers a Notice to the tenant. Notice that the “N” in “Notice” is capitalized. This is a formal notification issued in the form of a document that provides the tenant with information per Virginia statute and is the required first step by the landlord/property manager.
This Notice notifies the tenant that they are in default and that they have 14 days after the Notice to pay some specified amount, such as all late rent and fees, or the landlord may terminate the lease and proceed to eviction. This 14-day period is not an extension to the deadline to pay late rent and fees, for they are already late and due. This 14-day period is afforded to tenants per Virginia statute to pay unpaid balances otherwise the landlord can terminate the lease. Another way to describe this is to say that a landlord can’t simply terminate a lease when a tenant is late on paying rent. This official Notice to the tenant is required first.
A landlord can terminate the lease following this 14-day period without using the courts. Tenants are obligated to vacate the premises no later than the date selected by the landlord for termination of the lease. Tenants are still obligated to comply with all terms and conditions of the lease. (This information is correct at the time of this post.)
