A Landlord’s Liability for Personal Injuryin Virginia

A Landlord’s Liability for Personal Injuryin Virginia

An estimated 2.7 million Virginians reside in a rentedresidence.That means thatone in every three households are rentals.In Virginia’s larger citiesthe percentage of rental households is much higher. For example, in both Alexandria and Richmond, around 60% of the cities’ households rent their residence.1With such a large number of rental residences, questions of liability for personal injuries caused by the condition of the rental premises often arise.

In most instances, the Virginia Residential Landlord Tenant Act (hereafter “the VRLTA”)(Va. Code Ann. § 55.1-1200, et. al.)governs the relationship between a landlord and a tenant. For example, the VRLTA restrictscertain lease terms, requires the landlord provide certain essential services, and governs the eviction process. Despite the seeminglycomprehensive nature of the VRLTA, one situationthe VRLTAdoes not controlis when a tenant is injured as the result ofthe leased premises’ condition.That situation is governedby the common lawestablished overdecades of Supreme Court precedent.See Isbell v. Commercial Inv. Assoc., 273 Va. 605, 644 S.E.2d 72 (2007) andStewart v. Holland Family Properties, 284 Va. 282, 726 S.E.2d 251 (2012).

For decades, Virginia Courts have held that “The tenant take the [rental] premises as they are, and his invitees take the risks of the situation.”Caudillv. Gibson Fuel Co.,185 Va. 233,240, 38 S.E.2d 465, 469(1946). Stated another way, “a landlord has no duty of care to maintain or repair leased premises when the right of possession and enjoyment has passed to the lessee. The duty resides with the lessee under these circumstances and no action in tort can be sustained against the landlord for personal injuries resulting from the failure to maintain or repair the leased property.” Stewart v. Holland Family Props., 284 Va. 282, 287, 726 S.E.2d 251, 255 (2012).

For example, in the often-citedCaudill case, the tenant rented her home from a mining company in Wise County. The Court noted that “[t]he houses [rented by the mining company to its employees] had not been kept in good physical condition andwere badly in need of repair.” In fact, one witness testified—using “ineloquent but expressive language”—that the home rented by the mining company to the Caudill tenant “‘was as bad as it could be [and still]lived in,’ and ‘The outside was tore off and holes in it, and looked like the porch was to fall down.’” Unsurprisingly, a portion of the home’sporch gave way, causing the tenant to fall through, breaking her left arm and causingotherpersonalinjuries.On appeal, the Virginia Supreme Court upheld the trial court’s dismissal of plaintiff’s case. Despite the defective condition of the porch and the mining company’s contractual obligationto repair the premises, the landlord owed the plaintiff no duty regarding the condition of the home after she took possession of the property.

1See “Homeowner vs. Renters Statistics;” iPropertyManagement
https://ipropertymanagement.com/research/renters-vs-homeowners-statistics#state-by-state

“Virginia’s Renter Population;” Virginia Realtors®,
https://virginiarealtors.org/2020/04/13/virginias-renter-population

Over the years, the Virginia Courts have continued to uphold the general rule articulated in Caudill. The reasoning behind this rule is long rooted in the separation between a claim in negligence and that for breach of contract. The landlord/tenant relationship is created by the lease agreement, which is a contract, and “[n]o matter the alleged harm, tort liability cannot be imposed upon a contracting party for failing to do a contractual task when no common-law tort duty would have required him to do it anyway.” Tingler v. Graystone Homes, Inc., 298 Va. 63, 82, 834 S.E.2d 244, 255 (2019). Therefore, unless the actions of the landlord relate to an established common law duty, there will be no liability for personal injuries.

There are three common situations where the landlord can be found liable for personal injuries to a tenant, based on the condition of the premises. The dutiesimposed by these three situations stem not from the contractual relationship between the landlord and the tenant, but from general duties owed by the landlord to the tenantand his/her guests.

First, where the landlord knows about adangerous condition, does not disclose the dangerous condition, and the condition could not be discovered by reasonable inspection, a landlord may be found liable for the act of concealing the defect. In 1916, The Virginia Supreme Court established the precedent upon which much of the modern cases concerning landlord liability for personal injury arebasedin Smith v. Wolsiefer. In that case, the Court reasoned,“if the lessee has the same opportunity as the owner to discover a defect, at the time of leasing, the rule of caveat emptorapplies, and he takesthe premises as he finds them.”Smith v. Wolsiefer, 119 Va. 247, 253, 89 S.E. 115, 117 (1916). Therefore, under normal circumstances, there is “no implied warranty on the part of a lessor that the [leased] premises are safe or reasonably fit for occupation.” Id.However, the Court tempered this ruling noting that where “there is some latent defect[s] . . . which were knownto the lessor, andwere not known to the lessee, nor discoverable by him on a reasonable inspection, then the lessor has a duty to disclose the defect” and if the plaintiff is injured by this hidden defect, a landlord may be liable. Id.Therefore, the determining factors becomethe knowledge of the landlord and whether the defect could be discovered on reasonable inspection.The Court noted latent defects would include things like “an original structural weakness, or decay, or the presence of an infectious disease.”

Second, a landlord may be found liable when he undertakes to make a repair to the leased premises, does so negligently, and that negligent repair causes atenant’s injury. This situation is distinct from the common law rule that no liability in tort is imposed upon a landlord for his failure to comply with a contractual obligation to repair the leased premises. If “a landlord enters leased premises, after delivering possession to the tenant, for the purpose of making repairs, he must use reasonable care in performing the work” and “[i]n order for the tenant to recover for injuries caused by a defective condition resulting from the repairs, he must show that the repairs were made in a negligent manner.” Oden v. South Norfolk Redevelopment & Housing Authority, 203 Va. 638, 640, 125 S.E.2d 843, 845(1962). Stated another way, “where a landlord makes repairs to the leasehold premises and, in the process of doing so, creates a dangerous condition by a positive act of negligence on its part, the landlord can be held liable in tort.” Tingler v. Graystone Homes, 298 Va. 63, 96, 834 S.E.2d 244, 262 (2019) (emphasis in original). Therefore, the question is didalandlord (or more likely his agents) take anaffirmative action to repair a portionof the leased premises and doso negligently?If so, liability can attach.It is that negligent act that creates possible liability, rather than the landlord-tenant relationship.

Third, the common law rule does not apply to the common areas of a rental property.Common areas are defined as areas that are in common use of the tenants and their guests. These areas include, but are not limited to halls, stairway, parking lots, and other approaches. See Wagman v. Boccheciampe, 206 Va. 412,415, 143 S.E.2d 907, 909(1965). “The general rule, long followed in this Commonwealth, is that it is the duty of the landlord, with respect to reserved common areas, to use ordinary care to keep such places in a reasonable safe condition. For failure to perform that duty, the landlord is liable for injuries to tenants and others lawfully using such places for their intended purposes.”Taylor v. Virginia Construction Corp., 209 Va. 76,79, 161 S.E.2d 732, 735(1968).“Thus, the liability of a landlord for injuries occurring to persons lawfully using reserved common areas is not to be tested by determining whether he would be liable for some injury occurring to the tenant upon the actual premises leased.Instead, such liability is to be determined by resolution of the question of whether the landlord has breached his duty to use ordinary care to keep such reserved areas in a reasonably safe condition.” Marple v. Papermill Park Corp., 30 Va.154, 156 (Winchester Cir. Ct. 1993).

 

Therefore, under Virginia common law, once a tenant takes possession of a leased property, the landlord is not liable for personal injuries sustained by the tenant or his/her guests resulting from the condition of the property. The major exception to this rule occurs when a landlord takes some sort of affirmative act in relation to the condition of the property and that affirmative act causes the injury. When you are presented with a situation where a tenant is claiming injury as the result of the condition of the rental property the most important questions are how and where the injury occurred. If the injury is not the result of the landlord’s repair or concealment of the dangerous condition and the accident occurred in areas under the control of the tenant, the common law rule will likely control.

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