THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Saturday, June 3, 1995 TAG: 9506010346
SECTION: REAL ESTATE WEEKLY PAGE: 02 EDITION: FINAL
COLUMN: LANDLORDS & TENANTS
SOURCE: BY WILLIAM MAZEL
LENGTH: Medium: 89 lines
Q. My family and I live on the first floor of a house that has a one-bedroom apartment on the second floor.
When my husband and I looked into renting this house, the landlord said the tenants in the apartment above were very quiet and if we had any problem with noise, traffic, etc., call him and he would deal with it.
Well, needless to say, we moved into the house. In November, we signed a year's lease. I have two small children and one on the way.
Since we moved in, we have spent many nights staying at my in-laws' house or in hotels because of the noise - loud music, people coming and going at all hours, slamming doors, screaming, fighting, bad language, etc.
We have called the police. They quiet down for a short while and then start up again. We have complained four times to the landlord without having any satisfaction.
Is there any way we can get out of our lease? We cannot keep paying rent on a place in which we cannot even sleep because of the constant noise coming from upstairs.
A. Even though you have signed a lease and even though the lease probably does not contain a statement concerning your landlord's promised to ``deal with'' the noise, it is my firm opinion that you can terminate the lease on grounds of fraudulent inducement into signing the lease.
You really should have included in the lease a provision that the landlord would enforce quiet in the apartment above.
However, there are many cases in Virginia that hold that if a landlord either knowingly makes a statement that is false or makes a statement that he knows he is not going to enforce, and that statement is relied upon by a perspective tenant to the damage of that tenant, then this would be called fraud in the inducement and you could terminate the lease.
I suggest that you do it immediately because the longer you stay there, the more precarious will be your legal correction. Exculpatory clauses
Q. My father and I were living in an apartment when my father was killed by carbon monoxide from a defective gas heater in the apartment. The lease said that the landlord was to provide heat and was to maintain the heating and electrical and sewage systems.
Since I was the oldest son, I qualified as the administrator of my father's estate and brought suit against the landlord.
The landlord used as a defense to my suit a clause in the lease, called an exculpatory clause: ``. . . nor shall the landlord nor any of his representatives or employees be liable for any damage to the person or property of the tenant, his family or his visitors, which might result from the condition of these or other premises of the landlord, from theft or from any cause whatsoever.''
What is an exculpatory clause? Is it valid in Virginia and does this apply to this case?
A. A general rule that agreements exempting a party from future liability for negligence are generally recognized as valid and they are called exculpatory clauses.
The agreements are effective except where, because of the relationship of the parties, exculpatory provisions are contrary to public policy or the public interest.
If the contract is between private persons who bargain for positions of substantially equal strength, the agreement is ordinarily enforced by the courts. The exculpatory will be declared void, however, where one party is at such a disadvantage in bargaining power that he or she is practically compelled to submit to the stipulation.
Also, Virginia does not like exculpatory clauses that completely protect from liability for injuries by such person's own negligence.
In applyying the rule in this case, I believe the court would decide the exculpatory clause was contrary to public policy and void because the landlord dictated the terms of the lease, the landlord's duty to maintain the heating system in good and proper working order.
The landlord knew that failure to do so could possibly result in death; therefore, the landlord's conduct might be called grossly negligent. In this case, I feel that the court in Virginia would not enforce that exculpatory clause.
I am sure that your attorney has discussed this matter with you and has told you the same thing. MEMO: William Mazel has taken over the ``Landlords and Tenants'' column while
Al Teich campaigns for city office in Norfolk. Mazel is a retired
lawyer and formerly co-wrote the column with Teich. Send comments and
questions to him at Real Estate Weekly, 150 W. Brambleton Ave., Norfolk,
Va. 23510.
by CNB