DATE: Saturday, March 15, 1997              TAG: 9703130263

SECTION: REAL ESTATE WEEKLY      PAGE: 27   EDITION: FINAL 

COLUMN: LANDLORDS & TENANTS 

SOURCE: Greg McCracken

                                            LENGTH:   77 lines

RENTERS SMOKED OVER FIRE DAMAGE REPAIRS

Q. Recently, the house we are renting was damaged by fire. The fire started with a faulty light switch in the kitchen. The resulting damage has left the kitchen unusable. There is also water damage to the living and dining rooms and the rest of the house smells like smoke. Who is responsible for the repair of the house and do we have to pay the full amount of rent during the time we can't use the kitchen? Additionally, can we hold the landlord responsible for the dry cleaning of our clothes and the cleaning of the carpet to try to get the smoke out?

A. You need to look at your lease and see if it contains any provision pertaining to responsibility for damages in this situation. Under current law, if the premises are damaged through no fault or negligence of the tenants and they are deprived of the use of all or a portion of the property because of the damage, rent can be reduced in proportion to the extent they can no longer use the property.

This reduction should continue as long as you are deprived of the full use of the property. Additionally, you have no obligation as a tenant to repair the premises. That's the landlord's responsibility. However, a tenant can assume these obligations by provision contained in the lease. Therefore, take a look at your lease to see what it says.

With regard to the dry cleaning of your clothes and cleaning of the carpet, there is no specific provision that says your landlord is responsible for this. However, if the fire was not caused by you, these are probably reasonable damages, which should be borne by the landlord since when he leases the premises, he warrants it is fit for habitability. You also may want to check your renter's insurance to see if it will cover this type of damage.

Q. In June 1995, I purchased a home in North Carolina. I planned to sell my house in Virginia, but a couple asked to rent the house from me for a short time. They rented it for a year, then I sold it last August.

Do I pay taxes on the money received as rent and does this affect rolling over capital gains into my present home?

A. The money you have received as rent is income to you. However, for advice on how that affects your taxes, including capital gains, you need to seek a tax expert.

Q. We have been evicted by our landlord. How long do we have to get out of the property?

A. It depends on how much time the judge gave you. If you didn't attend court, you need to call to find out. If you are not out of the premises once that period expires, the landlord can contact the sheriff's department, show the order of possession and, under the supervision of the sheriff, take possession of the premises.

In doing this, he can hire a moving company, at your expense, and move your possessions out of the premises. Therefore, I suggest you find out when you need to be out and make arrangements to be out prior to that date.

Q. I rent half a duplex. Centered just in front of the front porch was the ugliest shrubbery I have ever seen in my life. With the onset of spring-like weather, I dug up the bush, planted in its place, at my own expense, a healthy gardenia, mulched under it and planted pansies around the gardenia bush.

Last week, I received an irate call from my landlord demanding that I remove the gardenia and he would charge me for replacing the shrubbery I had removed. I told him I did this landscaping at my own expense and do not expect to take the plants with me when I leave. Can my landlord do anything to me for putting in the new plants?

A. Technically, you are not allowed to dig up and replace plants without your landlord's permission. Your possession of property pertains only to the interior of the duplex. Although the bush was ugly to you, beauty is in the eye of the beholder and that may have been the loveliest bush on earth to your landlord.

Now that we have gotten that out of the way, it seems to me you have done the only reasonably thing you could after you dug up the bush, which was to replace it. Therefore, I don't see what, if anything else, your landlord could ask of you as it actually sounds like you have improved the appearance of the property. Finally, this is generally not the kind of thing you get evicted over and I don't think it constitutes a material breach of the lease. 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

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