What Can a Landlord Deduct From a Security Deposit in Virginia?

What can a Virginia landlord deduct from a security deposit?

Four uses under subsection A, plus a withholding for a third-party utility balance under subsection C (below). The four uses § 55.1-1226(A) lists:

1. Accrued rent, including the reasonable charges for late payment of rent specified in the rental agreement
2. Damages the landlord has suffered because of the tenant’s noncompliance with § 55.1-1227 (the tenant’s duties to maintain the dwelling unit), less reasonable wear and tear
3. Other damages or charges as provided in the rental agreement
4. Actual damages for breach of the rental agreement under § 55.1-1251

The sentence, word for word:

Upon termination of the tenancy or the date the tenant vacates the dwelling unit, whichever occurs last, such security deposit, whether it is property or money held by the landlord as security as provided in this section, may be applied by the landlord solely to (i) the payment of accrued rent, including the reasonable charges for late payment of rent specified in the rental agreement; (ii) the payment of the amount of damages that the landlord has suffered by reason of the tenant's noncompliance with § 55.1-1227, less reasonable wear and tear; (iii) other damages or charges as provided in the rental agreement; or (iv) actual damages for breach of the rental agreement pursuant to § 55.1-1251. Va. Code § 55.1-1226(A)

Separately from the itemized notice, the landlord must apply the deposit, under the section’s rules, within the same 45 days (§ 55.1-1226(C)).

A closed list: “solely”

“Solely” makes this a closed list: nothing outside the four uses may come out of the deposit, apart from the utility withholding subsection C allows. Item (iv) is limited by another section (next). Item (iii), other damages or charges as provided in the rental agreement, leans on the lease, within limits. A lease term that § 55.1-1208(A) forbids is unenforceable (§ 55.1-1208(B)), and no landlord may require a tenant to pay a fee for the maintenance or repair of the unit unless the tenant’s violation of a requirement of the Act made it necessary (below). The deposit section does not stop a landlord recovering other damages the Act allows (below).

Item (iv): actual damages for breach of the lease

The deposit section sends item (iv) to another section in terms: “actual damages for breach of the rental agreement pursuant to § 55.1-1251”. That section sets the limits:

Actual damages for breach of the rental agreement may include a claim for rent that would have accrued until the expiration of the term of the rental agreement or until a tenancy pursuant to a new rental agreement commences, whichever occurs first, provided that nothing contained in this section shall diminish the duty of the landlord to mitigate actual damages for breach of the rental agreement. In obtaining post-possession judgments for actual damages as defined in this section, the landlord shall not seek a judgment for accelerated rent through the end of the term of the tenancy. Va. Code § 55.1-1251

So where a tenant leaves early, lost rent may be claimed only until the term of the lease ends or a tenancy under a new lease begins, whichever comes first; the landlord’s duty to mitigate is preserved; and a judgment obtained after possession may not be for accelerated rent through the end of the term. This is what limits applying a deposit to rent after a tenant leaves early. The same section says that when the tenant vacates, voluntarily or by a writ of eviction, the deposit is credited to the tenant’s account in accordance with § 55.1-1226. This page does not work out what a landlord’s actual damages are.

Late charges

Item (i) covers accrued rent, “including the reasonable charges for late payment of rent specified in the rental agreement”. Another section of the Act sets the ceiling on those charges:

A landlord shall not charge a tenant for late payment of rent unless such charge is provided for in the written rental agreement. No such late charge shall exceed the lesser of 10 percent of the periodic rent or 10 percent of the remaining balance due and owed by the tenant. Va. Code § 55.1-1204(E)

So a late charge comes out of the deposit only if the written lease provides for it, and never above the lesser of the two 10 percent figures.

Fees for maintenance or repair

Unless necessitated by the tenant's violation of a requirement of this chapter, no landlord shall require a tenant to pay any fee for the maintenance or repair of any dwelling unit. Va. Code § 55.1-1208(C)

On our reading this limits what “other damages or charges as provided in the rental agreement” can cover: a lease charge for routine maintenance or repair is a fee this subsection bars unless the tenant’s violation of a requirement of the Act made the work necessary. We found no Virginia decision reading the two provisions together.

No immediate credit against unpaid rent

When the tenancy ends, the tenant may not treat the deposit as an immediate credit against unpaid rent (§ 55.1-1226(C)). The deposit is applied under the rules on this page, within the 45 days, and the itemized notice says what was applied. Ending the tenancy early does not excuse that notice either: the landlord must still give written notice of the deposit’s disposition within the 45 days, and may retain the balance to apply against what the tenant owes the landlord under the Act or the lease (§ 55.1-1226(A)).

Reasonable wear and tear

Item (ii), damage caused by the tenant’s failure to meet the duties in § 55.1-1227, carries the limit:

(ii) the payment of the amount of damages that the landlord has suffered by reason of the tenant's noncompliance with § 55.1-1227, less reasonable wear and tear Va. Code § 55.1-1226(A)

The Act does not define reasonable wear and tear, and we found no Virginia decision that does. The phrase appears in two places in the Act: here, and in § 55.1-1233, which requires a tenant at the end of the tenancy to leave the premises “in good and clean order, reasonable wear and tear excepted”. Neither gives a definition or examples, and this page does not supply either.

Where a charge turns on whether something was wear and tear, the move-in report and the record of the move-out inspection are the documents that show what changed (next).

The move-in report and the move-out inspection

The record starts at move-in:

The landlord shall, within five days after occupancy of a dwelling unit, submit a written report to the tenant itemizing damages to the dwelling unit existing at the time of occupancy, and the report shall be deemed correct unless the tenant objects to it in writing within five days after receipt of the report. Va. Code § 55.1-1214(A)

A landlord may instead adopt a written policy letting the tenant prepare the report, which is then deemed correct unless the landlord objects in writing within five days, or providing for a joint report signed by both (§ 55.1-1214(B)). Damage listed on the report does not by itself oblige the landlord to repair it, unless another section of the Act requires the repair (§ 55.1-1214(C)). At move-out, this report is the starting point for telling new damage from what was already there.

At the other end, the deposit section sets the inspection:

Upon request by the landlord to a tenant to vacate, or within five days after receipt of notice by the landlord of the tenant's intent to vacate, the landlord shall provide written notice to the tenant of the tenant's right to be present at the landlord's inspection of the dwelling unit for the purpose of determining the amount of security deposit to be returned. If the tenant desires to be present when the landlord makes the inspection, he shall, in writing, so advise the landlord, who in turn shall notify the tenant of the date and time of the inspection, which must be made within 72 hours of delivery of possession. Va. Code § 55.1-1226(G)

The landlord volunteers the notice of the right to be present; the tenant does not have to ask for it. It is due when the landlord asks the tenant to vacate, or within five days after the landlord receives the tenant’s notice of intent to vacate. A tenant who wants to attend must say so in writing, and the landlord then notifies the tenant of the date and time.

The 72 hours run from “delivery of possession”, which is a different event from the two dates that start the 45-day clock. The sentence does not say whether the 72 hours also bind an inspection the tenant did not ask to attend. Inspecting within 72 hours either way meets it on either reading; that is a precaution we suggest, not a rule we found.

After the inspection the landlord must provide “a written security deposit disposition statement, including an itemized list of damages”; on our reading one document can serve as both that statement and the 45-day itemized notice. Damage found later can still be recovered from the tenant, but the tenant may put the move-out report in evidence to show it was not there at the inspection.

Unpaid utilities owed to a third-party provider

Subsection C has its own rule for one kind of utility balance:

However, provided that the landlord has given prior written notice in accordance with this section, the landlord may withhold a reasonable portion of the security deposit to cover an amount of the balance due on the water, sewer, or other utility account that is an obligation of the tenant to a third-party provider under the rental agreement for the dwelling unit, and upon payment of such obligations the landlord shall provide written confirmation to the tenant within 10 days, along with payment to the tenant of any balance otherwise due to the tenant. Va. Code § 55.1-1226(C)

The prior written notice must have advised the tenant of the tenant’s rights and obligations under the section, and been given in one of three ways: (i) a termination notice under the Act, (ii) a written notice confirming the vacating date, or (iii) a separate written notice at least 15 days before the disposition of the deposit.

Then the 10-day rules. Once the utility balance is paid, the landlord must give the tenant written confirmation, with any balance otherwise due, within 10 days. If the tenant gives written confirmation that the final utility bill is paid, the deposit is refunded within the 45 days unless there are other authorized deductions; if that confirmation comes after day 45, any remaining balance is due within 10 days of receiving it. If the landlord learns of the payment some other way, the refund is due within the 45 days.

“Reasonable portion” is not defined, and we do not put a number on it. The rule covers only an account the tenant owes a third-party provider; utilities the landlord itself bills through submetering or ratio billing are the subject of § 55.1-1212, not this rule.

Deductions during the tenancy

The section also reaches deductions made while the tenancy is running:

The landlord shall notify the tenant in writing of any deductions provided by this section to be made from the tenant's security deposit during the course of the tenancy. Such notification shall be made within 30 days of the date of the determination of the deduction and shall itemize the reasons in the same manner as provided in subsection F. No such notification shall be required for deductions made less than 30 days prior to the termination of the rental agreement. Va. Code § 55.1-1226(E)

So the notice is in writing, within 30 days of the date the landlord decides on the deduction, with the reasons itemized “in the same manner as provided in subsection F”, the records subsection (below). None is needed for a deduction made less than 30 days before the rental agreement ends. A willful failure to give these notices is a failure to comply with the deposit section, which carries the remedy below.

Records of deductions, and the statement of charges

The landlord shall: 1. Maintain and itemize records for each tenant of all deductions from security deposits provided for under this section that the landlord has made by reason of a tenant's noncompliance with § 55.1-1227, or for any other reason set out in this section, during the preceding two years; and 2. Permit a tenant or his authorized agent or attorney to inspect such tenant's records of deductions at any time during normal business hours. Va. Code § 55.1-1226(F)

The records are open to the tenant, the tenant’s authorized agent or the tenant’s attorney, not to the public. A willful failure to keep them is a failure to comply with the deposit section.

A second, general duty of the Act, not part of the deposit section: on a tenant’s written request, the landlord must give a written statement of all debits and credits over the tenancy or the past 12 months, whichever is shorter, within 10 business days (§ 55.1-1204(D)).

Damage that costs more than the deposit

The deposit section does not stop the landlord or the tenant from recovering other damages the Act entitles them to:

This section shall not preclude the landlord or tenant from recovering other damages to which he may be entitled under this chapter. Va. Code § 55.1-1226(E)

For a landlord, that covers a claim for damage beyond the deposit, or for rent (for example under § 55.1-1251). The section says it does not preclude other damages the Act allows, so on our reading such a claim survives even where the deposit must be returned; one Roanoke City circuit court judge read it that way in 2015 (Reed v. Smith), and we found no appellate decision on it. That judge was applying the predecessor of today’s section, which had the same sentence, and a trial-court opinion binds no other court.

Where damages to the premises exceed the deposit and need a third-party contractor, a landlord who gives the tenant written notice of that within the 45 days gets an additional 15 days to provide an itemization of the damages and the cost of repair. All three conditions are needed, and nothing else is extended; the deadline guide covers it.

What a willful failure costs

The deposit section’s own remedy turns on willfulness:

If the landlord willfully fails to comply with this section, the court shall order the return of the security deposit to the tenant, together with actual damages and reasonable attorney fees, unless the tenant owes rent to the landlord, in which case the court shall order an amount equal to the security deposit credited against the rent due to the landlord. Va. Code § 55.1-1226(E)

The trigger is a willful failure to comply with “this section”, which reaches every duty in it (the cap, the mid-tenancy notices, the records, the inspection notice), not only day 45. So a late notice is not by itself a forfeiture, a willful failure costs the whole deposit and more, and the section has no multiplier. If the tenant owes rent, the statute directs an amount equal to the deposit credited against the rent due; it does not say whether actual damages and attorney fees are still awarded then.

“Willfully” is not defined. The only published opinion we found that applies it to a deposit is Reed v. Smith (2015), one Roanoke City circuit court judge’s decision, a trial-court opinion that binds no other court. There the tenant had left without giving a forwarding address when asked, and the landlord gave no disposition notice and no itemization and sued within days of the tenant leaving; the judge called that “probably negligent” but not willful “under these facts”, and the opinion does not define willfulness. It decides nothing about what willful means in any other case.

Willfulness is the gate for the whole-deposit order, not for every claim. Separately, another section of the Act, on a tenant ending the lease for the landlord’s noncompliance, also lets a tenant recover damages for a landlord’s noncompliance with the rental agreement or the Act, and reasonable attorney fees unless the landlord proves its actions were reasonable under the circumstances; that text has no willfulness requirement.

In addition, the tenant may recover damages and obtain injunctive relief for noncompliance by the landlord with the provisions of the rental agreement or of this chapter. The tenant shall be entitled to recover reasonable attorney fees unless the landlord proves by a preponderance of the evidence that the landlord's actions were reasonable under the circumstances. Va. Code § 55.1-1234

So, on our reading, a late or incomplete deposit notice that was not willful may still be claimed as noncompliance under Va. Code § 55.1-1234, with damages and attorney fees. We found no decision on whether it applies to a deposit violation.

A separate, general remedy lets anyone adversely affected by an act or omission the Act prohibits sue in circuit court for an injunction and damages (§ 55.1-1259(A)). The deadline guide covers a late or missing notice.

Work out a Virginia deposit return

The free Virginia deposit tool asks which of the four uses each deduction is applied to, or whether it is a utility balance withheld under subsection C. It does not decide whether your charge fits the use you choose. It works out day 45 from the later of the termination date of the tenancy and the date the tenant vacated, and generates a statute-cited return letter, all in your browser with nothing stored. How much you may collect in the first place is in the deposit limits guide.

Virginia security deposit deductions: common questions

What can a Virginia landlord deduct from a security deposit?

Four uses under subsection A, plus a withholding for a third-party utility balance under subsection C. The four are accrued rent, including the reasonable charges for late payment of rent the rental agreement specifies; the damages the landlord has suffered because of the tenant’s noncompliance with § 55.1-1227 (the tenant’s duties to maintain the dwelling unit), less reasonable wear and tear; other damages or charges as provided in the rental agreement; and actual damages for breach of the rental agreement under § 55.1-1251. That last one has limits of its own: lost rent may be claimed only until the term ends or a new tenancy begins, whichever comes first; the landlord’s duty to mitigate is preserved; and a judgment obtained after possession may not be for accelerated rent through the end of the term. The deposit may be applied "solely" to those four, so the list is closed. The utility withholding covers only a balance the tenant owes a third-party provider, and needs prior written notice advising the tenant of the tenant’s rights and obligations under the section, given in one of three ways the section sets out. A late charge must be in the written lease and may not exceed the lesser of 10 percent of the periodic rent or 10 percent of the remaining balance due. A landlord may not require a tenant to pay a fee for the maintenance or repair of the unit unless the tenant’s violation of the Act made it necessary. The section does not stop the landlord from recovering other damages the Act allows. (Va. Code §§ 55.1-1226(A), (C), 55.1-1251, 55.1-1204(E), 55.1-1208(C))

What is reasonable wear and tear in Virginia?

The Act does not say. Damage the tenant caused is chargeable to the deposit "less reasonable wear and tear", and the phrase appears in one other place in the Act, the tenant’s duty at the end of the tenancy to leave the premises "in good and clean order, reasonable wear and tear excepted". Neither gives a definition or examples, and we found no Virginia decision that defines it, so we do not supply either. Where a charge turns on whether something was wear and tear, the move-in report and the record of the move-out inspection are the documents that show what changed. (Va. Code §§ 55.1-1226(A), 55.1-1233, 55.1-1214)

Can a Virginia landlord take a late fee out of the security deposit?

Only one the written lease provides for. The deposit may be applied to accrued rent, "including the reasonable charges for late payment of rent specified in the rental agreement", and no late charge may exceed the lesser of 10 percent of the periodic rent or 10 percent of the remaining balance due and owed by the tenant. (Va. Code §§ 55.1-1204(E), 55.1-1226(A))

Can a Virginia landlord deduct unpaid utilities from a security deposit?

The deposit section has a rule for a balance the tenant owes a third-party provider on a water, sewer or other utility account under the rental agreement. A landlord who gave prior written notice advising the tenant of the tenant’s rights and obligations under the section, in one of three ways (a termination notice under the Act, a written notice confirming the vacating date, or a separate written notice at least 15 days before the disposition of the deposit), may withhold a reasonable portion of the deposit to cover it; the statute does not define "reasonable portion". Once the balance is paid, the landlord gives the tenant written confirmation within 10 days, along with any balance otherwise due. Utilities the landlord itself bills through submetering or ratio billing are the subject of § 55.1-1212, not this rule. (Va. Code § 55.1-1226(C))

Does a Virginia landlord have to do a move-out inspection with the tenant?

The landlord must give the tenant written notice of the right to be present at the landlord’s inspection of the unit: when the landlord asks the tenant to vacate, or within five days after receiving the tenant’s notice of intent to vacate. If the tenant asks in writing to attend, the landlord must tell the tenant the date and time, and the inspection must be made within 72 hours of delivery of possession, an event that is not one of the two dates that start the 45 days. The sentence does not say whether the 72 hours also bind an inspection the tenant did not ask to attend. Inspecting within 72 hours either way meets it on either reading; that is a precaution we suggest, not a rule we found. After the inspection the landlord must provide a written security deposit disposition statement, including an itemized list of damages. (Va. Code § 55.1-1226(G))

Does a Virginia landlord have to tell the tenant about deductions made during the tenancy?

Yes, in writing, within 30 days of the date the landlord decides on the deduction, with the reasons itemized in the same manner as the deposit section’s records of deductions. No notice is required for a deduction made less than 30 days before the rental agreement ends. (Va. Code § 55.1-1226(E))

Can a Virginia landlord recover damage that costs more than the security deposit?

The deposit section says it "shall not preclude the landlord or tenant from recovering other damages to which he may be entitled under this chapter". That covers a landlord’s claim for damage beyond the deposit, or for rent (for example under § 55.1-1251). The section says it does not preclude other damages the Act allows, so on our reading such a claim survives even where the deposit must be returned; one Roanoke City circuit court judge read it that way in 2015 (Reed v. Smith), and we found no appellate decision on it. That opinion is a trial court’s and binds no other court. Where damages exceed the deposit and need a third-party contractor, written notice to the tenant within the 45 days gives the landlord 15 more days to provide an itemization of the damages and the cost of repair. (Va. Code § 55.1-1226(E))

Sources

• Va. Code § 55.1-1226(A): the four permitted uses and reasonable wear and tear
• Va. Code § 55.1-1204(E): the late-charge ceiling
• Va. Code § 55.1-1204(D): the statement of charges and payments
• Va. Code § 55.1-1208(C): fees for maintenance or repair
• Va. Code § 55.1-1214(A): the move-in report
• Va. Code § 55.1-1226(G): the move-out inspection
• Va. Code § 55.1-1226(C): third-party utility balances
• Va. Code § 55.1-1226(E): deductions during the tenancy, other damages, the contractor extension and the remedy
• Va. Code § 55.1-1226(F): records of deductions
• Reed v. Smith, 90 Va. Cir. 220 (Roanoke City Cir. Ct. 2015) (a trial court; binds no other court): one judge’s reading of “willfully” and of other damages
• Va. Code § 55.1-1251: what actual damages for breach of the lease may include
• Va. Code § 55.1-1234: a tenant’s damages and attorney fees for a landlord’s noncompliance, with no willfulness requirement in the text
• Va. Code § 55.1-1259(A): the general action for an injunction and damages
• The Virginia security deposit tool and full cited rules

About this page

Every quoted passage above comes from the same rules the Virginia tool runs on, and the list of permitted uses is rendered from them. The statutes are on an automated weekly watch. Where a sentence gives our reading rather than the text, it says so, and where it relies on a court, it names which court and what kind it is. How we verify the law explains the process. This is general information that cites the law, not legal advice, and Orygn LLC is not a law firm. For advice about your situation, talk to a licensed Virginia attorney.