Landlord and Tenant: Landlord liable for not timely fixing carbon monoxide leak

Where the record supported the circuit court’s conclusion that an abandoned chimney crock posed a risk for carbon monoxide leaking into the residence, and that the landlord failed to remedy the condition within 30 days, the tenants’ prevailed on their tenant assertion claim under Code § 55.1-1244(A).

Background

Random Pinecone and Kelly Byrne appeal the decision of the circuit court, which found in favor of tenants David and Heather Davies on their tenant assertion and breach of lease regarding habitability claims.

USBC

            The landlord argues that the circuit court erred “when it held that the Uniform Statewide Building Code requires abandoned inlet openings to be masonry sealed.” While the circuit court did conclude that the unsealed chimney flue was a serious risk to the life, health or safety of the occupants of the premises, there is nothing in the letter opinion, or the rest of the record, that indicates the circuit court based this holding on the requirements of the Uniform Statewide Building Code. Nor did the circuit court rule on the motion to reconsider. “So, there is no ‘ruling’ for this Court to ‘consider[] as a basis for reversal.’”

Tenant assertion claim

Under Code § 55.1-1244(A), a “tenant may assert that there exists upon the leased premises a condition that …, if not promptly corrected, will constitute a fire hazard or serious threat to the life, health, or safety of occupants of the premises.”

The landlord notes that the circuit court concluded that the stove was not the source of the elevated carbon monoxide. It argues that there is no evidence indicating another source of carbon monoxide, including from the abandoned chimney crock. Thus, it contends that there is no evidence in the record to support the circuit court’s conclusion that the chimney crock was a serious threat to the life, health or safety of the tenants.

The court disagrees. There is evidence in the record that the abandoned chimney crock posed a risk for carbon monoxide leaking into the residence. In light of this evidence, and the fact that the source of the September 30 carbon monoxide leak appeared to remain unknown, this court cannot say that the circuit court erred in concluding that the abandoned chimney crock posed a serious threat to the life, health or safety to the tenants.

To succeed on a tenant’s assertion claim, the tenant must also show that the landlord “refused or, having a reasonable opportunity to do so, failed to remedy the condition for which he was served a written notice of the condition by the tenant or was notified of such condition by a violation … notice from an appropriate state or local agency.” There is “a rebuttable presumption that a period in excess of 30 days from receipt of the notification by the landlord is unreasonable.” The record on appeal does not contain evidence that rebuts the statutory presumption in Code § 55.1-1244(B)(1).

The landlord nevertheless argues that the circuit court erred when it held that the tenants did not cause the condition and that it “utterly failed to address [Heather’s] testimony that she removed the cap installed on the abandoned chimney flue.” But this argument misconstrues both Heather’s testimony and the circuit court’s actions.

Attorneys’ fees

The landlord argues that the tenants waived their claim for attorney fees because they did not state a basis for their claim in the Tenant’s Assertion and Complaint, the original bill of particulars or the amended bill of particulars. Because the landlord concedes that it knew the basis of for the tenants’ attorney-fee claim, that makes it unnecessary to decide whether the tenants’ pleadings adequately pled the basis for that claim.

Affirmed.

Random Pinecone LLC v. Davies, Record No. 0428-23-4, July 16, 2024. CAV (unpublished opinion) (Atlee Jr.). From the Circuit Court of Fairfax County (Devine). Christopher Chipman (Compton & Duling, L.C., on brief), for appellants. Seth James B. Obed (Obed Law, PLLC, on brief), for appellees. VLW 024-7-218. 14 pp.