Onancock, VA asked in Contracts, Real Estate Law and Landlord - Tenant for Virginia

Q: Dear Esq: my daughter had to leave her off campus apartment after COVID19 cancelled everything. She and

her three roomates have paid their rent each month but now the apartment is empty (3 roomates also left -entire town is deserted). I have recently read about the 'force majeure'. With all the death going on everywhere and in that town as well, is this such an event? The students are clearly safer at home than in crowded apartments where four girls lived in 695 square feet! These kids cannot afford to pay rent for housing that is no longer being lived in and they've lost their jobs along with their classes, etc.! The only reason they lived in this apartment was to be near the University. PS - it's a HUGE developer, not a small homeowner. Can you help us?

3 Lawyer Answers
F. Paul Maloof
F. Paul Maloof
Answered
  • Landlord Tenant Lawyer
  • Alexandria, VA
  • Licensed in Virginia

A: The legal definition of "force majeure" is an unforeseeable circumstances that prevents someone from fulfilling a contract. Generally, a pandemic is not an unforeseeable circumstance since they have occurred many times in the past. Unless the residential lease provides that a pandemic is a force majeure, this current pandemic will not be a legal basis for the lease to terminate. You may want to discuss the issue with the landlord and seek a compromise.

Shafeek Seddiq
Shafeek Seddiq
Answered
  • Reston, VA
  • Licensed in Virginia

A: I agree with Mr. Maloof's answer so please take a look at the lease agreement to learn how force majeure is defined. Additionally, see if you can find a language something about laws or extraordinary laws preventing one from performing contract. In this case, it was the Government of Virginia which ordered closure of schools, etc., so that could constitute force majeure if it is there.

Richard Sternberg
Richard Sternberg
Answered
  • Potomac, MD
  • Licensed in Virginia

A: This is quite an unusual circumstance, with the last pandemic being at the beginning of the last century. Even then, I don't believe there were mandatory stay-in-place orders and institutional shutdowns, in part because society couldn't have survived these kinds of orders before the Internet. Further, I don't think we've ever closed the courts and barred evictions and foreclosures in Virginia. Maybe that happened during the fall of Richmond when the courts were no longer run by the Confederate States.

On the other hand, the Virginia Supreme Court tends to be significantly more strict in literal contract interpretation than her neighboring states, and, further, you might keep in mind that the landlord isn't released from his mortgage by the pandemic. To give a better contractual analysis, I agree with my colleagues that you need to start with reading the lease. Plainly, neither side anticipated Covid-19 or these strange governmental orders. But, how the words of your lease inadvertently anticipated the crisis matters, at least in a formal setting. Nevertheless, the landlord needs to pay his mortgage, and he cannot sue to evict right now. I'll bet that the intervention of independent legal counsel would yield a reasonable settlement.

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