DATE: Saturday, September 13, 1997          TAG: 9709110310

SECTION: REAL ESTATE WEEKLY      PAGE: 29   EDITION: FINAL 

COLUMN: LANDLORDS & TENANTS 
SOURCE: Greg McCracken

                                            LENGTH:  102 lines

PROPERTY UPKEEP COVERED BY CITY LAW

Q. Some rental property in our neighborhood is owned by an out-of-state landlord and managed by a local property management company. The tenants in the rental property don't keep up the outside of the property. They drive their cars through the front and side yards and park in the yards as opposed to the side street next to the property.

We have contacted the property management company, but they haven't done anything to stop this behavior. I tried to find the owner through the City of Virginia Beach, but the property manager is listed as the owner on city records. Can we do anything to remove this blemish from our neighborhood? Can the courts fore the property management company to improve the conditions of the units?

A. Since you are not a party to the lease, this really isn't a landlord-tenant issue. Additionally, nothing in the Virginia Residential Landlord Tenant Act or the common law pertaining to landlords and tenants covers this. This is really a question about enforcement of city code or ordinances.

I suggest that you contact the Virginia Beach city attorney's office. Someone there should be able to point you in the right direction to determine whether any ordinance or code is being violated and, if so, what you can do to stop it.

With regard to finding the property owner, I suspect you called the city assessor's office, which gave you the information that the property manager company is the owner. If that is the case, you may want to go to the deed room in the municipal complex and see if you can find out who the actual owner is. If you didn't call the city assessor's office, you may want to.

Q. I rent a townhouse from an individual. We signed a standard lease with a few minor stipulations that made me uncomfortable. One of the stipulations made me responsible for plumbing. Since we moved in, we have had a problem with a leaky toilet. We replaced the wax seal, but it still leaks. We have been told that we need a new toilet. Is it legal for a landlord to shift the responsibility for the plumbing to the tenant?

A. The Virginia Residential Landlord Tenant Act requires a landlord to maintain a premises in a habitable condition. This generally means that the premises has a roof that does not leak, doors and windows in good condition, and is provided with heat, water, sewers and electricity. Since the law is ever changing, there is no clearly defined line about where this duty ends.

However, as a rule of thumb I think of everything behind the walls as the landlord's responsibility and everything within the walls as the tenant's responsibility unless otherwise specified. Having said that, under the VRLTA parties may by written agreement shift some of the burdens to the tenant, including repairs specified by the parties.

Within the confines of a written lease, there is nothing that prohibits the parties to agree that the tenant is responsible for all repairs and maintenance inside the premises. Therefore, there is nothing illegal about this lease. If you had concerns about the lease prior to signing it, you should't have done so. Having signed the lease, it is now your responsibility.

Q. I made a deposit of $200 to hold an apartment until Aug. 16. I was assured by the property manager that the apartment would be clean and ready for occupation on the 16th. When I arrived, the apartment was filthy. The front windows were broken, the back windows were boarded up, the air-conditioner was gone, and the kitchen carpet and cabinets were ripped out. There was a puddle of water in the kitchen and the light fixtures were gone and wires were hanging.

The property manager met me at the property and offered to have the carpets cleaned but was very nasty and told me to take it or leave it. She refused to give me back my money. I have been unable to contact the landlord or find any address for his business. The only thing I have is a post office box.

The clerk of the court said that a P.O. box was not any good, and until I had an actual physical address, I couldn't bring suit to get my money back. The property manager's address is unlisted and she refused to give out any information regarding the landlord. What can I do to get my money back?

A. Without a physical address you can't sue either of them. The address is necessary so the sheriff or process serve knows where to serve the papers. Before the court can take action, it has to be certain that the due process requirements are met and the defendants have proper notice of the lawsuit filed against them and an adequate opportunity to come in and defend themselves.

If you still cannot find them after making reasonable efforts, you may be able to file suit and have them served by substitute service through the Secretary of the Commonwealth. However, this will require that you execute an affidavit stating that you have used due diligence in attempting to find these people. Even then, the Secretary will need a physical address to mail the suit papers.

Q. Can a landlord go into an apartment without permission when no one is home?

A. Under common law, the landlord has no right to go into the property except when provided in a written lease. Most leases not governed by the VRLTA provide that the landlord has the right to enter the property after giving notice and receiving permission from the tenant to make repairs or take actions necessary to maintain the premises.

Under the VRLTA, the landlord is provided with reasonable access to the property in order to inspect the premises to make necessary or agreed repairs, declarations, alterations or improvements; supply necessary or agreed services, or exhibit the dwelling to prospective or actual purchasers, mortgagees, tenants, workers or contractors.

The landlord may also enter the dwelling without the consent of the tenant in the case of an emergency. The landlord shall not abuse the right of access or use it for harassment purposes. MEMO: Greg McCracken is a Virginia Beach lawyer. Send questions to him

at 4705 Columbus St., Virginia Beach, Va. 23462-6749.

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