DATE: Saturday, August 16, 1997             TAG: 9708150599

SECTION: REAL ESTATE WEEKLY      PAGE: 09   EDITION: FINAL 

COLUMN: LANDLORDS & TENANTS 

SOURCE: Greg McCracken

                                            LENGTH:   91 lines

HOW TO SOLVE THE PROBLEM OF ``SHARED'' TRASH CANS

Q. I live in a building with four apartments, two upstairs and two downstairs. Each apartment is assigned its own trash can, which according to the terms of the lease we have to use. About once a month, a young man who is another tenant in the building will have a party or friends over for an afternoon of drinking and by the end of the weekend his trash and one of the other three will be filled with beer bottles and pizza boxes. Since trash pick-up is not until Thursday, this leaves the three other tenants to share two trash cans. By the time Tuesday or Wednesday rolls around, there is always a bag or two of trash lying on the ground, which inevitably is ripped open by a dog or cat and trash spread all over the back parking area. What can the other three tenants do to stop him from using our trash cans and how should we approach the situation?

A. First you should try to talk to him and see if that works. You will probably find that you have a person who thinks he is acting responsibly in taking out the trash, but is ignorant of the hardship he is causing the other tenants in filling up their containers. Suggest to the person that he buy an overflow container to handle these situations. If it doesn't or if you have already tried that and it didn't work, then your lease will most likely have a provision in it that tells you how to put your landlord on notice of these types of problems. This type of problem probably falls under the quiet enjoyment section of the lease, but may also fall under the common areas section. In any event, if your lease requires you to use a certain trash can and you are prevented from doing so by another tenant, notify your landlord of the problem in writing, certified mail return receipt requested. The landlord then has 21 days in which to fix the problem. If he doesn't, you ``may'' be entitled to break the lease. I say ``may'' because it is questionable whether this rises to the level of a breach of a material term of the lease.

Q. I moved in with my girlfriend about six months ago. Last week when I got back from a week long business trip, she had locked me out of the apartment with all of my stuff inside except for what was in my travel bags. I contacted the landlord to see whether he could do anything, but he got mad because I am not on the lease and only one person is supposed to be living in the apartment. He said I had no right to be in there, and he didn't have to do anything to help me get my stuff out. Is he right, and if so, what can I do?

A. The landlord is right. If your girlfriend is the only person on the lease and you didn't move in with the landlord's approval, you have no right to live there. You can go there as a guest, but to move in for six months stretches the concept of guest a bit far. Therefore, your landlord is right, and he isn't required to take any action. However, this doesn't mean that you have no way to get your stuff back. Although you can't recover it under the lease, you can, if necessary, file a Warrant In Detinue in the General District Court. A Warrant In Detinue is a pleading that says someone has your stuff, they have no right to keep it, and they won't give it back. With some explaining in the clerk's office, you can probably get an expedited hearing to get your stuff back before it is ``lost'' or destroyed. However, even if it is lost or destroyed, you can list the alternate value of the property and get a judgment for that amount. I hope you don't have to go that route, because it sounds messy, but if tensions remain high, that may be your only recourse.

Q. I have a tenant who brought a cat into the apartment despite being prohibited from doing so by the lease. However, I didn't find out until six months into the lease. Since she was a good tenant, I allowed her to keep the cat. But I made it clear that she had to keep the apartment clean and would be responsible for any damage done by the cat. When she moved out, we did a walk-through inspection and found that where the cat had urinated on the carpet, and the carpet had faded. Also, the urine had seeped through into the pad and the sub-flooring and there was a distinctive odor. The damage is limited to one room, but because I bought the carpet at a remnant sale, I cannot find a match to re-carpet only that room. Therefore, I need to replace all of the carpet and padding and have the sub-flooring treated in two places to remove the odor. She denies there is any smell, but she is used to it. She had air fresheners in every conceivable place in the house to conceal the odor. And, she insists that I am only entitled to replace the carpet in that room. What can I do?

A. Give your tenant notice in writing of the damage caused to the apartment and the estimated cost of repair. Replace the carpet using the security deposit toward its cost (if there was a security deposit) and provide her with proof that the carpet has been replaced and the actual cost of the replacement. If your tenant is inclined to dispute the damage, it is then up to her to do so. There is no requirement that you replace only the one room, especially if you can't match the carpets. But be mindful that courts are very skeptical of carpet replacement costs, and look specifically at how long the carpet has been in the apartment. The longer it has been there, the less likely they are to award the carpet replacement costs. But your situation is different, in that it sounds fairly straightforward that the damage was caused by a pet this tenant brought into the apartment. As long as you can show that the carpet was in a good condition before her tenancy and damaged afterwards, you will be in a good position. 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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