Wohlford v. Quesenberry

PRESENT: 	Carrico, C.J., Compton, Lacy, Keenan, Koontz, and
Kinser, JJ., and Whiting, Senior Justice
LINDA H. WOHLFORD
OPINION BY
v. 	Record No. 990320 	SENIOR JUSTICE HENRY H. WHITING
January 14, 2000
GLADYS A. QUESENBERRY
FROM THE CIRCUIT COURT OF BEDFORD COUNTY
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 § 36-98.1 Accordingly, 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
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 Board.
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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
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
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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 "owner."
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
possession, assignee of rents, receiver, executor, trustee, or
lessee in control of a building or structure. 	(Emphasis added.)
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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
Affirmed.
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