THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Saturday, September 14, 1996 TAG: 9609130483
SECTION: REAL ESTATE WEEKLY PAGE: 24 EDITION: FINAL
COLUMN: LANDLORDS & TENANTS
SOURCE: Greg McCracken
LENGTH: 114 lines
Q. About three months ago, my husband, our 2-year-old daughter and I moved into an apartment. Shortly afterward, we found out that the apartment was infested with roaches.
We immediately notified the management company and they have sprayed our apartment once a month since we have been here and the entire building once. However, the problem remains and we continue to see roaches on a daily basis.
Can we terminate our lease and move out of the apartment?
A. First, look at your lease and see if there is a provision about pest control. If so, it will govern who bears the responsibility for ridding the apartment of roaches.
If it is your responsibility, your chances of being able to terminate the lease diminish. However, since your landlord has been providing an exterminator for your apartment, chances are there is no provision in the lease or it places responsibility on the landlord.
If there is no provision in the lease, then the landlord has a duty to maintain the premises in a fit condition pursuant to Section 55-248.13 of the Code of Virginia, which does not specifically address pest problems, but is drafted broadly enough for them to arguably be included.
However, this section is balanced by Section 55-248.16, which requires that you keep the apartment in a clean condition. If you have fulfilled this obligation, chances are you would probably be able to terminate the lease due to the roach infestation.
You should first contact your landlord and see if you can do this by agreement since he has acted so promptly in attempting to address the problem. However, if it cannot be resolved by agreement, you still must give notice of the problem in writing, allow 21 days to correct it and, if not corrected, you can leave 30 days after the date of the notice.
This does not guarantee that your landlord will not dispute your termination, but if you go to court, you will have complied with the statutory requirements. Locl doesn't work
Q. I am a female college student attending Old Dominion University. I share an apartment with two other girls near the university. When we moved into the apartment, the dead-bolt lock on the door did not work but the landlord assured us it would be replaced immediately.
It has not been almost three weeks and the dead bolt has still not been replaced. The only lock securing our door is the lock in the knob, which will come loose if you shake it.
We have made repeated complaints to the landlord who continues to assure us it will be fixed. Is he required to provide us with a safe door lock?
A. Section 55-248.13:1 provides that the governing body of any city, county or town may require, by ordinance, any landlord who rents five or more dwelling units in any one building to install dead-bolt locks, which meet the requirement of the Uniform Statewide Building Code, and peep holes in any exterior swinging entrance door, so long as the door does not have a glass panel.
I am told, but have not verified, that Norfolk has such an ordinance and, therefore, if your landlord has five or more units in the building, he is required to abide by this code section. I will confirm whether Norfolk has such an ordinance in my next column.
In any event, he should install working locks on the doors and his failure to do so is arguably a failure to maintain the premises in a fit and habitable condition. Stung by generosity
Q. I lease a house to someone who is routinely late in their rental payments. They are never more than 12 days late, but I always have to go looking for the rent. This past month, they were not able to pay and I agreed to allow them to pay two months rent the following month.
If this problem continues, have I waived my right to sue them for breach of the lease, which requires that the rent be paid on or before the 5th of each month?
A. Probably. If you are subject to the Virginia Residential Landlord Tenant Act, Section 55-248.34 says that acceptance of periodic rent payments with knowledge of a material non-compliance (e.g., not paying the rent when due as stated in the lease) by the tenant constitutes a waiver of the landlord's right to terminate the rental agreement unless the landlord accepts the rent with reservation and gives written notice to the tenant of such acceptance.
Therefore, you have to give the tenant notice that you are accepting the late payments with a reservation and aren't waiving your right to sue for breach if there are further late payments.
However, there is a difference between being late with your rental payment and not paying the rent. In your situation, you probably have not waived your right to sue for failure to pay rent and, if the past due rent is not forthcoming, you could file suit. Breaking a lease
Q. I signed a lease for an apartment but never moved into it. I did get a key to it, cleaned it up and moved some of my possessions into it; however, before I could fully move in, my job situation changed and I had to move to another city.
I told my landlord about the problem and now he wants me to pay a month and a half's rent, which is how long it took him to re-lease the apartment. Do I have to pay this?
A. Probably. A lease is a contract and when you sign it, you bind yourself to its terms. Look in your lease to see if there is any provision for early termination and, if there is, see if you comply with it. If there is a provision and you did comply, point that out to your landlord.
If there is not a provision, you should have given your landlord 30 days written notice so he could begin immediately trying to re-lease the premises. Even in doing this, you are still not relieved from liability for any rent due to your breaking the lease.
Most leases have a provision in which the penalty for doing this is payment of an additional month's rent. If you do not do any of these things, your landlord is entitled to sue you for damages for breach of the lease, including the amount of rent lost until the property is re-leased.
If it was re-leased for a lesser amount, he can sue for the difference in what you were paying in rent and what the current tenant is paying. MEMO: Greg McCracken is a Virginia Beach lawyer. Send questions to him
at 4705 Columbus St., Virginia Beach, Va. 23462-6749. The fax number is
552-6016; e-mail, hpmv(AT)livnet.com by CNB