DATE: Saturday, August 30, 1997             TAG: 9708280378

SECTION: REAL ESTATE WEEKLY      PAGE: 10   EDITION: FINAL 

COLUMN: Landlords & Tenants 

SOURCE: Greg McCracken

                                            LENGTH:   81 lines

CONDO RULES OUTWEIGH CONTRACT

Q. I am employed by the federal government and frequently work out of the country. I own two condominiums in Virginia Beach, which are handled by a property manager, who has power of attorney to enter into and execute leases on my behalf.

In the past, the property manager has used lease forms containing a clause permitting me as the owner to give the tenant 60 days notice to vacate the premises when I was moving back into the country and needed the use of one of the condos.

However, when I recently returned from overseas, I learned that the property manager had been required by the condo homeowners association to execute a lease prepared by them.

This lease does not have the same clause; thus, I haven't ben able to get either tenant out of one of my condos. This has caused me to incur storage costs for my belongings and hotel bills until I can find an apartment to rent. Therefore, not only am I paying the mortgages on my condos, but now I am paying rent on an apartment.

Is the property manager responsible for my additional expenses or at least a percentage of them?

A. Probably not. Your relationship with the property manager is governed by any agreement you have signed. If the property manager has violated the terms of the agreement, you may be able to recover.

If there is no written agreement, then you need to look to the scope of the power of attorney to determine whether it has been violated by the property manager. If it has not been violated, then you would probably have no basis to recover. Without either of these documents, it is difficult to say.

You should take a close look at both the documents because therein lie your most promising avenues of recovery.

Q. I live in an apartment in a development that contains more than 70 units. My original lease was for one year. When it expired, I was asked to sign another lease or to go on a month-to-month basis. Since there was no increase in the rent, I elected not to sign the lease and continue on a month-to-month basis.

Another year has now passed and I am again being asked by the property management company to choose between signing a one-year lease or continuing on a month-to-month basis. However, they now want to increase my rent by $20 per month. Is it legal to ask a tenant to pay more on a month-to-month basis than on a yearly basis?

Since I have already lived in the property for two years, if I sign a one-year lease, would I be obligated for the entire year or can I move out at any time on 30 days notice?

A. There is nothing illegal or unethical about negotiating with a tenant to increase the amount of rent. The advantage of the month-to-month lease is the flexibility in being able to terminate it on 30 days notice. However, that works both ways and your landlord can also terminate on 30 days notice.

With regard to your second question, if you sign a one-year lease, you will be bound by the terms of the lease, including the termination provision. The fact that you have been in the property for more than two years does not give you any special rights when it comes to providing notice under the terms of the lease.

However, you may try negotiating this with your landlord in exchange for agreeing to sign the one-year lease at a lower rent.

Q. I have recently been told on more than one occasion that under the Norfolk City Code the landlord is not required to provide a tenant with electricity. This seems to be contrary to what you have said in previous columns.

Does the landlord have to provide a tenant with electricity?

A. I can't imagine that the Norfolk City Code doesn't require any structure built or maintained for the purpose of a residential dwelling to be wired for electricity.

Having said that, if it is wired for electricity, the landlord has no duty to ensure that Virginia Power or anyone else provides the tenant with electrical service.

The tenant's responsibility is to contract with the power company to turn on the electricity and thereafter to pay the bills. However, the landlord does have a duty under the Virginia Residential Landlord Tenant Act to maintain good safe working order and condition all electrical, plumbing, sanitary, heating and ventilating, conditioning and other facilities and appliances supplied or required to be supplied by him. 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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