Feeling screwed - Misread lease switch to month to month

[Varesident470528]

Jurisdiction

Virginia

Hi,

I feel really stupid for this and worried I may get ultra screwed. Four years ago we signed a one year lease that converts to month to month after a year if no notice is given. I thought at the time that it keeps going with the same rent. I recently reread and it says the per down rate actually doubles and now I'm freaking out. I know I was really careless and stupid, but I can't take it back.

We've been paying rent as normal for 3 years at the original rate and the landlord hasn't mentioned anything. She seems normal and not malicious but are we setting ourselves to get screwed? Could she sue us when we move out and say we've missed all that rent because we've only paid half? She has never said anything but as far as I can tell maybe she's not required to? Would we have no recourse if she sues? There is no indication that has happened but if she knows this then maybe that's why she's never asked to raise the rent.

Any help/advice would be much appreciated. I know how stupid I was here I just hope it doesn't cost us tens of thousands of dollars. This would way exceed small claims court limit in Virginia but maybe I could be sued in civil court?

 

[zddoodah]

it says the per down rate actually doubles

Huh? The "per down rate"? What does that mean?

Could she sue us when we move out and say we've missed all that rent because we've only paid half?

Anyone can sue anyone for anything and "say" anything.

You'll need to clarify what your lease says for anyone to be able to provide an informed response. If you can, please quote the relevant language.

 

[justblue]

Hi,

I feel really stupid for this and worried I may get ultra screwed. Four years ago we signed a one year lease that converts to month to month after a year if no notice is given. I thought at the time that it keeps going with the same rent. I recently reread and it says the per down rate actually doubles and now I'm freaking out. I know I was really careless and stupid, but I can't take it back.

We've been paying rent as normal for 3 years at the original rate and the landlord hasn't mentioned anything. She seems normal and not malicious but are we setting ourselves to get screwed? Could she sue us when we move out and say we've missed all that rent because we've only paid half? She has never said anything but as far as I can tell maybe she's not required to? Would we have no recourse if she sues? There is no indication that has happened but if she knows this then maybe that's why she's never asked to raise the rent.

Any help/advice would be much appreciated. I know how stupid I was here I just hope it doesn't cost us tens of thousands of dollars. This would way exceed small claims court limit in Virginia but maybe I could be sued in civil court?

Post, word for word sans identifying information, the section of the lease regarding renewal and rent increase upon month to month renewal.

 

[army judge]

She seems normal and not malicious but are we setting ourselves to get screwed?

So far you seem to be living unaffected by what COULD have happened.

If that worries you, all you need to do is give your notice before it AUTOMAGICALLY renews on the NEXT renewal date.

You can even give your notice TOMORROW that you'll be vacating the unit by whatever the renewal date is.

That will allow you ample time to find your next great rental, or whatever solution you pursue.

She has never said anything but as far as I can tell maybe she's not required to?

Maybe she likes you and yours, and is happy because you're great tenants???

I know how stupid I was here I just hope it doesn't cost us tens of thousands of dollars. This would way exceed small claims court limit in Virginia but maybe I could be sued in civil court?

Nothing you have posted leads me to believe you're stupid.

Will you be sued?

No one can predict the future, but EVERYONE can control the present.

 

[Varesident470528]

Sorry all - here is the relevant text. I feel pretty screwed here. Landlord has never said we are late on rent or anything, but maybe they are intentionally silent knowing they will bank in on this. Had we known, we would have moved out much earlier.

"Tenant shall vacate at the end of Lease Term unless Tenant and Landlord have agreed in writing to extend or renew Lease. Parties shall notify each other not less than 60 days prior to next Rent due date prior to the end of the initial Lease Term if they wish to negotiate extending or renewing Lease. Any such lease negotiation shall be completed not less than 30 days prior to the end of the initial Lease Term or Tenant shall be required to vacate before the end of the Lease Term. Should Tenant fail to vacate at the end of the Lease Term, Tenant agrees that the per diem rate will double."

 

[army judge]

"Tenant shall vacate at the end of Lease Term unless Tenant and Landlord have agreed in writing to extend or renew Lease. Parties shall notify each other not less than 60 days prior to next Rent due date prior to the end of the initial Lease Term if they wish to negotiate extending or renewing Lease. Any such lease negotiation shall be completed not less than 30 days prior to the end of the initial Lease Term or Tenant shall be required to vacate before the end of the Lease Term. Should Tenant fail to vacate at the end of the Lease Term, Tenant agrees that the per diem rate will double."

If the current lease wasn't FORMALLY renewed, you're probably living under the state law about month to month tenancies.

Virginia law creates a month to month lease agreement allowing landlords to set up an at-will tenancy with their tenant(s). This means that the terms of the agreement are carried from month to month until either the landlord or the tenant terminates the lease in writing.


A VA lawyer comments:

Gross, Romanick, Dean & DeSimone, P.C. | Fairfax, Virginia Law Firm

Another VA lawyer comments:

Virginia Notice Requirements to Terminate a Month-to-Month Tenancy

 

[Varesident470528]

Thanks very much for this reply. So what are the implications for me under the VA state law? Are those carry over lease terms the double rate? My lease language seems to imply that and I am not 100% tracking on your response.

Thanks all so much for your help on this!

 

[army judge]

So what are the implications for me under the VA state law?

The lease you once signed remains intact UNTIL BOTH parties renegotiate a new lease.

You are living under the lease that was originally created and it's terms govern BOTH parties.

Are those carry over lease terms the double rate?

Not according to VA law:

§ 55.1-1225. Tenancy at will; effect of notice of change of terms or provisions of tenancy

What rights do I have as an at-will tenant in Virginia? - Quora

My lease language seems to imply that and I am not 100% tracking on your response.

All you need to KNOW and more, even an agency that you can email or call to ask specific questions or to allow you to clear up any doubts!!!!!

Read on, dear poster, read on!!!!!!!

Virginia's New Residential Landlord Tenant Laws: The Power of the Assumed Lease
posted on September 26, 2019


In 2019 Virginia's legislature took action and made large strides to protecting a residential tenant's interest. In their last session the Virginia General Assembly passed a new set of laws which have repealed all of the old residential landlord tenant laws, and created some new very powerful tools for tenants. Arguably the most impactful new law is Virginia Code Section 55.1-1204(C) inferring a lease with certain terms, even when there is no physical written lease to speak of.

Effective October 1st of 2019, unless agreed to otherwise in writing – and even without a written lease, the law of Virginia deemed the following to exist:

• 
  1. The lease is for twelve months with no automatic renewal.
  2. Rent is to be paid in twelve monthly payments.
  3. Rent is due on the first of the month and late after the fifth of the month.
  4. A reasonable late fee may be charged.
  5. The security deposit can be no more than two months' rent.
  6. Rent will be what was orally agreed on or the fair market value.

While there are other new laws that were passed to help the tenant, Virginia Code Section 55.1-1204(C) provides much to unpack. The first term, twelve months with no automatic renewal, provides a level of security previously missing to tenants with no written lease. Before this law, without a signed lease the tenancy was seen as a month to month tenancy, and so a thirty day notice to terminate was sufficient to end the tenancy by either the tenant or the landlord. Now tenants who do not have a written lease do not need to live in fear of receiving a termination letter forcing them out in thirty days. They can be safe in knowing that their first year in the location will be for an entire year, lest they fail to pay their rent.

The second and third terms are more to clarify basic procedure than to provide a right. Now there is no confusion on how many payments need to be made and when those payments must be made.

The fourth term, that a reasonable late fee may be charge, tags along with knowing when rent is due. If there is a set date when the rent is due, then it is possible to state when it is late. However whatever the late fee might be, it must be reasonable.

The fifth term protects tenants from the over ambitious landlord. Most landlords require some amount of money as a security deposit. Now even without a written lease the landlord cannot demand more than two month's rent.

What the rent is that is owed is determined by the seventh and last term. The rent will be what was orally agreed on or the fair market value. If it is being based on the oral agreement, try to have some evidence as to what the amount is to be able to establish without a doubt that you only pay that much in rent. If no rent was agreed on then it will be the fair market value.

Having some definitive terms in place even when there is not a written lease is a boon to residential tenants. It provides a level of peace of mind that otherwise did not exist, and is important for both landlords and tenants to understand.

Note, this law only applies to residential leases. It does not apply to commercial agreements.

If you are a landlord or a tenant and have questions regarding a lease, breach of lease or the eviction process in Virginia, reach out to our landlord and tenant attorneys at (804) 423-1382 or info@wmmlegal.com. We are here to help.


Virginia's New Residential Landlord Tenant Laws: The Power of the Assumed Lease | Winslow & McCurry

 

[Varesident470528]

Thank you very much! A lot of information to digest. I need to run now but will take a deeper dive tonight. I really appreciate the quick and informative replies!

 

[army judge]

Thank you very much! A lot of information to digest. I need to run now but will take a deeper dive tonight. I really appreciate the quick and informative replies!

No issue, we try to answer questions when possible.

Bottom line, the law changed in 2019, and it inures to the benefit of VA tenants.

 

[Zigner]

Does your lease define an amount of rent "per day"? That's what "per diem" means, so if your lease doesn't define a daily rate, then it could be argued that your rent is now zero ($0 x 2 = $0). I'm not seriously suggesting that you would be paying $0 per month now, but the point is that it really doesn't sound like you have anything to worry about.

 

[army judge]

it really doesn't sound like you have anything to worry about.

I agree wholeheartedly and without any reservations.

The OP can thank the VA legislature and Governor for the new law adopted in October of 2019.

 

[Varesident470528]

I've been trying to digest this and feel a bit reassured by the responses. The VA legislation went into effect a couple years after the initial 12 month lease lapsed, so I guess I still have a little to worry about there.

I'm probably building this up in my head, it may just be that our landlord thinks we're good tenants and didn't raise the rent for that reason. But a part of me still worries I've been such a fool.

Assuming the worst, would she have had to notify me during that stretch of time that I was not meeting the rent? I had been paying our original rate on time the entire time, but it was not the double amount. I just worry that prior to 2019 when the VA legislature changed the law our landlord might come back later and say, hey, you still owe 30,000 in missed rent because you weren't paying double. But would she have had to tell me as I was 'missing them' (I.e. paying only half) and not disclose it all at once years later?

 

[army judge]

Assuming the worst, would she have had to notify me during that stretch of time that I was not meeting the rent?

Yes, but there was no new agreement.

If she wanted to raise the rent, she had to notify you in writing, and you would have to agree in writing.

Nothing of that sort ensued, you're worrying over NOTHING.

Now that the new law is in effect over one year, no lease is allowed to automatically renew under VA law.

Relax mate, prepare for the holiday season in complete peace of mind that there is nothing to worry about in regard to your EXISTING lease.

 

[Tax Counsel]

I disagree with ArmyJudge's take on the Virginia law. The default provisions he cited only apply when there is no written lease. Here, there is a written lease and it specifies what happens when the tenant and landlord fail to renew an existing lease. Also the law only bars automatic renewal when there is no written lease; it does not prohibit automatic renewal in written leases.

The fact that the landlord said the "per diem rate" shall double, however, does not necessarily mean the rental rate for holding over doubles. If the lease does not define per diem rate then that sentence may simply be inoperative. Moreover, the landlord having accepted the continuing rental payments for three years may give you a good argument that even if the lease provided for a rent increase that the landlord has waived that requirement for the months the landlord accepted the lower rate. In short, I don't see the Virginia statute as very helpful to you, but you may have other arguments to deflect a claim to back rent should the landlord ever raise it.

 

[Varesident470528]

Thanks again for the analysis here. I did a search for "per diem" in the full lease document and it only had two hits, and to me doesn't appear to ever be officially defined:

"Tenant shall vacate at the end of Lease Term unless Tenant and Landlord have agreed in writing to extend or renew Lease. Parties shall notify each other not less than 60 days prior to next Rent due date prior to the end of the initial Lease Term if they wish to negotiate extending or renewing Lease. Any such lease negotiation shall be completed not less than 30 days prior to the end of the initial Lease Term or Tenant shall be required to vacate before the end of the Lease Term. Should Tenant fail to vacate at the end of the Lease Term, Tenant agrees that the per diem rate will double."

.......

"HOLDOVER TENANT. Should Tenant fail to vacate as outlined in LEASE TERM paragraph, Tenant will become a holdover Tenant on a month to month basis under the same terms and conditions of Lease. In addition, Tenant shall be liable for any and all actual damages sustained by Landlord as a result of Tenant's holding over, including without limitation costs payable to a new tenant for moving, storage, meals, lodging and mileage. In the alternative, Landlord shall have the right to receive from Tenant, as liquidated damages, rent for the period of Tenant's holding over in an amount equal to 150 percent of the per diem of the monthly Rent, for each day Tenant remains in the Premises"

To be honest, it feels a little flimsy to argue that the term 'per diem' is not officially defined so could be considered $0 or not applicable, although if it were to help my cause I would certainly not complain.

I also find it a little weird that the top passage says a double per diem rate whereas the Holdover Tenant section says 150% of the per diem of monthly rent (a little more specific although not defined in this section).

At any rate, I'm wondering how much 'good faith' comes into play here. The literal reading of the lease doesn't seem to require the landlord to notify about late rent (except when it comes to notice in advance of an eviction), but it doesn't seem in good faith to not notify someone that they are not covering increased rent and then come back way later for a huge bill, so to speak.

I've tried to operate in good faith as a tenant, fixing things promptly as needed and keeping the property in good shape. Also, we've been wanting to move to a bigger place but feel bad leaving the landlord to try and rent it out in a tough COVID market. But I don't know of any legal aspect to good faith when it comes to notifying about late rent. And now I'm nervous to leave during COVID to potentially irritate her about finding a replacement during a tough market and having that trigger her to be aggressive about the automatic rent increase.

I wonder if I'm building this all up too much in my head, but we've been in this apartment for 4 years now so it's a lot of money at stake if this were to go south.

Thanks again to all of you - I really appreciate the insight.

 

[Tax Counsel]

over in an amount equal to 150 percent of the per diem of the monthly Rent, for each day Tenant remains in the Premises"

To be honest, it feels a little flimsy to argue that the term 'per diem' is not officially defined so could be considered $0 or not applicable, although if it were to help my cause I would certainly not complain.

Unfortunately, that last clause that I quoted above does define what the per diem rent is: you take the monthly rental rate that had been in effect and divided it by the number of days in the month and multiply that by 1.5 to get the per diem of the monthly rent. And then that other provision for failing to renew the lease would work the same way by instead of multiplying by 1.5 you multiply by 2. So if you stayed the whole month, the charge would be double the rent.

But like I said before, you may be able to avoid that by arguing that landlord waived the higher rent by taking without comment the usual rent month after month for 3 years. But it may be that your landlord has been happy having you there and will never try to come back for that extra rent anyway.