DATE: Saturday, July 19, 1997               TAG: 9707170352

SECTION: REAL ESTATE WEEKLY      PAGE: 32   EDITION: FINAL 

COLUMN: Landlords & Tenants 

SOURCE: Gre McCracken 

                                            LENGTH:   80 lines

IN SOME CASES, FAMILY STATUS MAY MATTER

In the June 21 column, we discussed whether a landlord can refuse to rent to people because they have children. The answer remains that under the federal and Virginia fair housing acts, you can't discriminate based on family status.

However, it has been pointed out that we did not address the exception: that neither act applies to the sale or rental of a single-family home by the owner as long as the owner does not own or have an interest in more than three single-family homes at any one time, and that no professional real estate person or facility is used.

Additionally, when the owner actually lives in one of the room or units of the property, and the property is occupied or can be occupied by no more than four independent families, then the federal and state fair housing acts do not apply. Finally, discriminatory advertising is prohibited at any time.

Q. I rented an apartment six months ago from a person who lives out of the area. Since that time, I have had numerous problems, including a water leak, which forced me to turn off the water to the entire apartment and carry water from a neighbor's apartment. And for a week during the coldest part of the winter, I went without any heat.

In each case, the landlord fixed the problem. However, it has required numerous phone calls. In one instance, I simply fixed the problem and withheld it from my rent, but I had no other choice. Now, with six months left on my lease, my landlord tells me he is increasing my rent. Can he do that?

A. Probably not. If, as in most leases, the amount of your monthly rent and the terms of the lease are fixed, and there is no provision for the rent to be increased during the term of the lease, then your landlord is absolutely barred from unilaterally increasing the rent. Further, his attempt to raise the rent probably constitutes retaliatory conduct under the Virginia Residential Landlord Tenant Act.

If you have filed suit against your landlord, put him on notice for a breach of the lease for failure to provide these essential services.

Q. My roommate and I are both in the military and had to break our lease because of reassignment outside the state. We made arrangements with our landlords for an exit inspection, but they canceled because of a family emergency. After we moved out, we received a letter from them withholding a portion of our security deposit for carpet cleaning.

Before we moved out, we had the carpet professionally cleaned, and we still have the receipt. Additionally, when we moved in four years ago the carpet was old. We wouldn't be surprised if it is the original carpet. If we cash the money order containing the remaining portion of our security deposit, would that be considered acceptance of the discrepancy list?

A. Cash the money order but call your landlords and tell them you're disputing the carpet cleaning. Tell them you had it cleaned and send them a copy of the receipt along with a letter confirming your dispute of this withholding. Find out why they felt the carpet needed to be cleaned despite the fact that you already had it cleaned.

In the legal community, we find that a multitude of problems can be solved through this type of one-on-one communication without the involvement of lawyers or the legal system. If you are unable to solve the problem or agree on a solution, then you can always resort to legal action.

Q. My wife and I have a noisy neighbor who plays loud music and makes loud noises during all hours of the day and night. We have notified the landlord and the police have been called out at one occasion. Both my wife and I work long hours and need a good night's rest, but never know when our rude neighbor will decide to afford us this courtesy. We have spoken to him directly, but he ignores our requests and treats them as if they are an intrusion on his freedom of expression. What can we do?

A. Give your landlord written notice via certified mail, return receipt requested, that unless the problem is fixed within 21 days, you will terminate the lease and vacate in 30 days. Quiet enjoyment of the apartment and a good night's sleep are as essential to a lease as the landlord's duty to provide heat, hot water and electricity. If he can't correct this problem, then you are entitled to leave. MEMO: Greg McCracken is a local 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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