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January 14, 2000

Record No. 990320






PRESENT: Carrico, C.J., Compton, Lacy, Keenan,
Koontz, and Kinser, JJ., and Whiting, Senior Justice

James W. Updike, Jr., Judge

We are required to determine whether the
Uniform Statewide Building Code (the BOCA Code) has modified the
common law rule that a tenant who has exclusive possession and
control of a premises, absent an agreement to the contrary, is
responsible for its maintenance and repair. Since the court
sustained a demurrer to a tenant’s counterclaim asserting that
the common law rule was so modified, we state the facts as
alleged in the counterclaim.

In July 1997, Gladys A. Quesenberry (the
landlord) rented a residence in Bedford County to Linda H.
Wohlford (the tenant) under a month-to-month lease. Nothing was
said in their oral lease about who would maintain the premises.

In the fall of 1997, the roof leaked and the
furnace malfunctioned, both conditions causing damage to the
tenant’s personal property. Additionally, soot and fumes from the
malfunctioning furnace caused personal injury to the tenant.

Upon the tenant’s failure to pay the rent, the
landlord filed an unlawful detainer warrant against her in the
general district court, and the tenant removed this action to the
Circuit Court of Bedford County. The tenant filed a counterclaim
in which she asserted the above facts.

The tenant contended that the landlord’s duties
of maintenance and repair of the defective conditions in the
premises arose under the National Property Maintenance Code (the
Maintenance Code, PM-__), a part of the codes and regulations
adopted by the Board of Housing and Community Development (the
Board) pursuant to Code ? 36-98.
the tenant contended that the landlord was guilty of negligence per
se in her violations of the code provisions.

The court sustained the landlord’s demurrer and
dismissed the counterclaim. Thereafter, the tenant vacated the
premises, and the landlord nonsuited her unlawful detainer claim.
The tenant appeals the dismissal of her counterclaim.

The tenant claims that the landlord’s duties of
repair and maintenance were expressly created in the Maintenance
Code. The following Maintenance Code sections require (1) that
"fuel burning appliances shall be properly installed and
maintained in a safe working condition, and shall be capable of
performing the intended function," PM-603.1, and (2) that
"[t]he roof and flashing shall be sound, tight and not have
defects that admit rain." PM-304.7

The parties agree that these duties exist under
the Maintenance Code. However, they disagree as to who has these
duties in this case. Because she leased the entire premises, the
tenant recognizes that she would have had those duties at common
law since the lease is silent on the subject. See Kesler
v. Allen
, 233 Va. 130, 133, 353 S.E.2d 777, 779 (1987); Paytan
v. Rowland
, 208 Va. 24, 26, 155 S.E.2d 36, 37 (1967). The
tenant contends, however, that the BOCA and Maintenance Codes
shifted these responsibilities to the landlord in this case.

The landlord responds that Code ? 36-97
and Section 202.0 of the BOCA Code embrace the common law rule by
their inclusion of a lessee in control of a building or structure
in their definitions of an "owner" as one who has the
described repair and maintenance responsibilities.
[2] The landlord also notes that
Section 201.1 of the BOCA Code provides that, unless otherwise
expressly stated, its specific definition of listed words, one of
which is an "owner," shall have the listed meanings in
applying its provisions. The landlord points out that Section
201.3 of the BOCA Code provides "[w]here terms are not
defined in this code and are defined in [three other listed
codes, none of which is the Maintenance Code] such terms shall
have the meanings ascribed to them as in those codes."

Because the term "owner" is defined
in Code ? 36-97 and in the BOCA Code, we conclude that
their definition applies to the tenant. The tenant claims,
however, that in requiring the tenant to permit the landlord
access to the premises for the discharge of landlord maintenance
and repair responsibilities, the Maintenance Code implies a
landlord’s right to enter the premises. Accordingly, the tenant
reasons that she never had the necessary control of the premises
required either at common law or under the Codes’ definition of

The tenant’s reasoning is flawed because its
major premise is that the landlord has the maintenance and repair
responsibilities specified in the Maintenance Code. As we stated
earlier, the BOCA and Maintenance codes impose responsibilities
on the "owner" of the premises as defined in Code
? 36-97 and the BOCA Code. Because the tenant was the
person in control of the premises, not the landlord, the tenant
is the defined "owner" under the facts of this case,
and the tenant has the maintenance and repair responsibilities
claimed. Hence, we conclude that under the circumstances
described in this case, none of the code sections relied upon
created a liability upon the landlord for the damages and
injuries alleged in the counterclaim.

Accordingly, the judgment of the trial court
will be




[1] Code ? 36-99 also
authorizes the Board to prescribe appropriate regulations having
due regard to generally accepted standards recommended by
nationally recognized organizations. The BOCA and the Maintenance
Codes were some of the recommended standards adopted by the

[2] The relevant provisions of Code
? 36-97 are:

As used in this chapter, unless the context or
subject matter requires otherwise, the following words or terms
shall have the meaning herein ascribed to them, respectively:

. . . .

"Owner" means the owner or owners of
the freehold of the premises or lesser estate therein, a
mortgagee or vendee in possession, assignee of rents, receiver,
executor, trustee, or lessee in control of a building or
. (Emphasis added.)