Your Common Law Lease and POA Disclosure Packet Questions Answered
Q. I represent a landlord who owns and leases two or fewer properties in Virginia. Why can’t I find the NVAR Common Law Lease in the NVAR Forms Library?
A. As of Jan. 1, 2019, there will no longer be a substantive difference between the common law landlord/tenant provisions and the Virginia Residential Landlord Tenant Act (VRLTA). To avoid confusion or duplication of efforts, the Common Law Lease has been retired since the law now requires common law leases to be virtually identical to the VRLTA Lease. A Landlord can still technically opt out of the VRLTA in order to use a common law lease, but that common law lease would be virtually identical to a VRLTA lease.
Q. I represent a buyer, and the property is located in a Property Owners Association. My client received the resale disclosure packet, but it does not appear to include all of the information and documents required by the Property Owners Association Act or the disclosure packet is several months old. What are my buyer’s options? Can the buyer refuse to accept the incomplete or out- of-date resale disclosure packet and preserve the three-day right of rescission until a complete or updated packet has been delivered?
A. Virginia courts have recently weighed in on this issue again. The three-day right of rescission under the Property Owners Association and Condominium Association Acts starts running from the moment the seller has delivered the resale disclosure packet to the buyer whether the resale disclosure packet is complete or not. Per the statutes, the resale disclosure packet need only be accurate as of the date issued. Resale disclosure packets do not need to have been issued within a certain amount of time from the date of the contract or delivery. In the event that the seller delivers to the buyer a resale disclosure packet that does not contain all of the information and documents specified in the statute, the buyer does not have the right to refuse acceptance of the disclosure packet. The statutes specifically provide that it is the seller’s obligation to prove delivery but does not permit the buyer to refuse receipt or acceptance.
In the event that the resale disclosure packet is outdated, or does not contain all of the statutorily required information, the buyer may request an update at the buyer’s expense. However, the buyer’s request for an update does not extend the three-day rescission period. If the buyer is uncomfortable proceeding to settlement with an incomplete or outdated disclosure packet, the buyer’s remedy under the statutes is to exercise the right of rescission and void the contract.
Q. When does the three-day right of rescission period end – at 9 p.m. on the third day following delivery, or some other time?
The right of rescission and the notices required under the Property Owners Association and Condominium Association Act cannot be waived or modified by contract. This includes the time period for exercising the right of rescission. While the NVAR Residential Sales Contract calculates “Days” as ending at 9 p.m. on the number of days specified following Delivery, this does not apply to the three-day right of rescission period. The statutes specifically state that the buyer has three days to rescind the contract, but do not otherwise define “days.” Until there is greater clarity in the statutes or from a court opinion, the safest option to avoid a dispute is to exercise the right of rescission within 72 hours of delivery of the resale disclosure packet.