Statute of limitations for lease default in VA

[sbyers]

Five years ago, my (now) wife left her apartment at college in VIRGINIA. Immediately afterwards, her landlord sent her a letter saying that there were cigarette burns in the carpet that she was responsible for that and other damages. She immediately went to see them in person to tell them that she didn't smoke and didn't even know anybody who smoked. Additionally her father sent a follow-up letter to dispute the claims. We never heard from them since then so we figured that they accepted the dispute. Now, 4 years and 11 months later we recieved a letter saying that if we don't pay within 10 days (around $500) they will file legal action against us. We ignored the letter and we just received a warrant to appear in court in Virginia at the end of May.

I've done a little research, and from what I can tell the statute of limitations in Virginia is 4 years for default of a rental agreement. Can anyone verify this? Are there exceptions? We have moved a couple of times since college but have always had a forwarding address.

We have very little documentation of the 5-year-old incident so unless there is a statute of limitations that applies, I don't know that we can stand on anything.

 

[Tracey]

I believe you are correct. Answer the warrant to appear with a motion to dismiss(Civil rule 12 or thereabouts) pleading the statute of limitations. Attach a copy of the lease or landlord's letter stating the moveout date (or an affidavit stating the end of the lease with Xeroxes of rent check as support of when the lease ended), and a copy of 8.2A-506.

The burden will then be on landlord to show why the 4 year limitation doesn't apply.

Also request sanctions under civil rule 11 for malicious prosecution and failure to conduct a reasonable investigation of the law and facts before signing papers submitted to the court. Request an amount equal to the security deposit you paid as an "adequate" sanction to punish landlord's negligent/malicious suit and teach him not to pull this stunt again.


If you want to post your answer here, the attorneys will take a look and make suggestions.

§ 8.2A-506

Statute of limitation

(1) An action for default under a lease contract, including breach of warranty or indemnity, shall be commenced within four years after the cause of action accrued. By the original lease contract the parties may reduce the period of limitation to not less than one year.

(2) A cause of action for default accrues when the act or omission on which the default or breach of warranty is based is or should have been discovered by the aggrieved party, or when the default occurs, whichever is later. A cause of action for indemnity accrues when the act or omission on which the claim for indemnity is based is or should have been discovered by the indemnified party, whichever is later.

(3) If an action commenced within the time limited by subsection (1) of this section is so terminated as to leave available a remedy by another action for the same default or breach of warranty or indemnity, the other action may be commenced after the expiration of the time limited and within six months after the termination of the first action unless the termination resulted from dismissal for failure or neglect to prosecute.

(4) This section does not alter the law on tolling of the statute of limitations nor does it apply to causes of action that have accrued before this title becomes effective.


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Landlord may reply by claiming you obstructed service by moving. If he does, you argue that you always left a forwarding address, and that this can be proved by the fact that landlord found you a month ago. (This argument is even better if you've lived in the same place since before the 4-year limitation ran out.)

Don't raise this issue in your answer - make landlord find it himself.


§ 8.01-229 Tolling Statute of Limitations

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D. Obstruction of filing by defendant. - When the filing of an action is obstructed by a defendant's (i) filing a petition in bankruptcy or filing a petition for an extension or arrangement under the United States Bankruptcy Act or (ii) using any other direct or indirect means to obstruct the filing of an action, then the time that such obstruction has continued shall not be counted as any part of the period within which the action must be brought.


Have fun!
Tracey

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This is not legal advice and you are not my client. Double check everything with your own attorney and your state's laws.

 

[sbyers]

Thanks, Tracey. A couple of questions:

The warrant says something like, I must be present on May 19 if I wish to dispute the case and then another court date is set. Is this true, or will a letter pleading statute of limitations do the job?

Also, should the answer be sent to the courthouse in Virginia? Copies to the landlord and their lawyer?

How can I find out what civil rule motion to dismiss is? (You said, "Civil rule 12 or thereabouts" in your reply.)

 

[Tracey]

What state are you in? Do you have to travel to another state to appear? Does the warrant say you have to be physically present or that you must "appear" by May 19? Filing a notice of appearance and motion to dismiss constitutes "appearing" in most states. Call a VA lawyer if you want to double check.

The civil rules are the state's Rules of Civil Procedure. Virginia law libraries should have them. MD libraries may also have copies.

You can't just send a letter pleading the S/L; you have to file a formal answer and motion to dismiss. The civil rules tell you how to prepare it - page size, margins, line numbers, captions & footers, etc. You can also look at existing court files to see example motions.

You have to file the original answer with the court (plus the number of copies specified in the local rules), and mail a copy to the lawyer. You don't mail it to the landlord.

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This is not legal advice and you are not my client. Double check everything with your own attorney and your state's laws.