If the sum determined for the improvements exceed the damages determined by the jury against the defendant as aforesaid, they shall then determine against him, for any time before such five years, the rents and profits accrued against, or damage for waste or other injury done by him, or those under whom he claims, so far as may be necessary to balance his claim for improvements, but in such case he shall not be liable for the excess, if any, of such rents and profits, or damages, beyond the value of the improvements.
§ 8.01-170.If allowance for improvements exceed damages, what to be done.
Chapter 3. Actions · Article 15. Improvements · Last amended 1977 · Last verified July 16, 2026
In one sentenceIf the value the jury sets for the defendant’s improvements exceeds the plaintiff’s damages, the jury may then look past the ordinary five-year period to older rents, profits, or waste to offset that improvement claim, though the defendant is never charged more than the improvements are worth.
Full Text of § 8.01-170
Plain-English Summary
Section 8.01-170 addresses what happens when the improvement side of the ledger outweighs the damages side. If the sum the jury determined for the defendant’s improvements is larger than the damages assessed against the defendant under Section 8.01-167, the jury does not award the defendant the difference outright. Instead, it looks for older rents and profits, or older damage from waste or injury, that fall outside the ordinary five-year window Section 8.01-168 otherwise imposes.
The purpose is to offset, not to punish. The jury may reach back beyond five years only as far as necessary to balance the defendant’s improvement claim — it is not opening the full history of the property to scrutiny. And even after reaching back, the defendant’s exposure has a hard limit: liability for that older period cannot exceed the value of the improvements. Whatever excess remains beyond that value stays with the defendant as a net gain.
Frequently Asked Questions
What triggers the older-rents-and-profits inquiry under Section 8.01-170?
The value the jury set for the defendant’s improvements exceeding the damages assessed against the defendant.
How far back can the jury look once this section applies?
Only as far as necessary to balance the defendant’s claim for improvements, not further.
Can a defendant end up owing more than the improvements are worth under this offset?
No. Liability for the older period cannot exceed the value of the improvements.
Does this section change the five-year limit in Section 8.01-168?
It is the exception referenced there, allowing a reach-back for offset purposes only, not a general extension of the five-year rule.
What happens if the improvements still exceed the older rents and profits?
The excess stays with the defendant, and Section 8.01-171 directs the jury to return a verdict for the resulting balance.
Amendment History
Code 1950, § 8-846; 1977, c. 617.
Source & verification. Section text and amendment history are
reproduced verbatim from the Code of Virginia, published by the
Code of Virginia, Virginia Division of Legislative Automated Systems. Last verified July 16, 2026.
· Official source
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