Isbell v. Commercial Inv. Associates, Inc.

Present: All the Justices

ROSCOE H. ISBELL

v. Record No. 061000 OPINION BY JUSTICE CYNTHIA D. KINSER
April 20, 2007

COMMERCIAL INVESTMENT ASSOCIATES, INC.

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Randall G. Johnson, Judge

In this appeal, we consider the question whether the

Virginia Residential Landlord and Tenant Act, Code §§ 55-

248.2 through –248.40 (the Act), creates a statutory cause

of action allowing a tenant to recover damages for personal

injuries resulting from his landlord’s alleged

noncompliance with duties imposed by the Act. We find that

the General Assembly did not plainly manifest an intention

to abrogate the common law rule that a landlord is not

liable in tort for a tenant’s personal injuries caused by

the landlord’s failure to repair premises under the

tenant’s control and possession. Therefore, we will affirm

the judgment of the circuit court granting the landlord’s

motion for summary judgment.

FACTS AND PROCEEDINGS

In a motion for judgment asserting a common law

negligence claim, Roscoe H. Isbell sought damages against

Commercial Investment Associates, Inc. (Commercial) and Bar
Properties, LLC for personal injuries Isbell allegedly

sustained when he fell down worn and slippery stairs

located inside an apartment he leased from the named

defendants.1 Isbell claimed that the stairway’s state of

disrepair was brought about by the defendants’ alleged

negligence in failing to inspect and maintain the premises,

and in failing to replace or repair unsafe conditions. He

also alleged that the condition of the stairs posed an

unreasonable risk of harm to persons such as Isbell and

that the defendants negligently failed to warn him of the

unsafe condition of the stairway.

Commercial filed a motion for summary judgment,

asserting that Isbell failed to state a claim upon which

relief could be granted because, as a matter of law, a

landlord owes no duty to maintain premises that are within

a tenant’s exclusive control. In his written response to

the motion for summary judgment and during oral argument on

the motion, Isbell argued that a violation of the Act gives

rise to a private cause of action for personal injury.

Although the circuit court opined from the bench that the

1
In its grounds of defense to Isbell’s motion for
judgment, Commercial acknowledged that it managed the
leased premises and that Bar Properties, LLC was the owner
at the time Isbell allegedly sustained his injuries.
Isbell nonsuited his claim against Bar Properties, LLC, and
it is therefore not a party to this appeal.

2
Act does not create such an action, it took the motion for

summary judgment under advisement.

Isbell subsequently requested leave to file an amended

motion for judgment. In his proposed amended pleading,

Isbell once again asserted a claim for common law

negligence. He also alleged that he was entitled to

recover under the Act, claiming that the defendants’

“failure to maintain and/or repair the property, [and]

failure to warn [Isbell] . . . constituted a breach and

violation of the [d]efendants’ duties, obligations, and

responsibilities under the . . . Act . . . and [that] said

breaches and violations proximately caused [his] damages

and injuries.”

After additional oral argument, the circuit court

granted Commercial’s motion for summary judgment, denied

Isbell’s motion to file an amended motion for judgment, and

dismissed the action against Commercial with prejudice. In

a letter opinion, the circuit court first explained that,

based on this Court’s decisions in Caudill v. Gibson Fuel

Co., 185 Va. 233, 38 S.E.2d 465 (1946), and Paytan v.

Rowland, 208 Va. 24, 155 S.E.2d 36 (1967), a landlord’s

failure to fulfill a contractual obligation to repair

leased premises under a tenant’s possession and control

does not impose liability in tort on the landlord. Thus,

3
the circuit court concluded that Isbell failed to state a

cause of action under the common law for his alleged

personal injuries.

The circuit court also concluded that Isbell could not

recover monetary damages for personal injuries under the

Act. Analyzing the provisions of Code § 55-248.40, the

circuit court reasoned that damages under that section were

only available in tandem with an award of an injunction.

Since Isbell no longer resided on the premises where he

allegedly sustained his injuries, the court concluded that

Isbell was not entitled to either injunctive relief or

damages. We awarded Isbell this appeal, limited to the

issue whether the circuit court erred in holding that the

Act “could not be relied upon by [Isbell] in support of a

private cause of action for damages.”2

ANALYSIS

The question whether the Act abrogates the common law

and provides a tenant with a statutory cause of action in

tort against his or her landlord for personal injuries

2
On brief, Isbell asserts that, in his proposed
amended motion for judgment, he stated a claim for
negligence per se and that the circuit court overlooked
that theory of liability. Irrespective of whether Isbell
stated such a claim in his proposed amended motion for
judgment, the circuit court did not decide whether a
landlord’s breach of the statutory duties imposed by the
Act can form the basis of a common law claim for negligence
per se, nor is that issue before us in this appeal.

4
resulting from the landlord’s violation of obligations and

duties imposed by the Act is a matter of first impression

before this Court. As the circuit court recognized, it is

well-settled in Virginia that, under the common law, a

landlord has “no duty to maintain in a safe condition any

part of the leased premises that [is] under [a tenant’s]

exclusive control.” Paytan, 208 Va. at 26, 155 S.E.2d at

37 (citing Oliver v. Cashin, 192 Va. 540, 65 S.E.2d 571

(1951)). Neither does any contractual duty undertaken by a

landlord to repair leased premises under a tenant’s control

render the landlord liable in tort for injuries sustained

by the tenant as a result of the landlord’s breach of a

covenant to make such repairs. Id. at 27, 155 S.E.2d at 38

(citing Caudill, 185 Va. 233, 38 S.E.2d 465); see also

Luedtke v. Phillips, 190 Va. 207, 211, 56 S.E.2d 80, 82

(1949). In Caudill, this Court explained the common law

rule in detail:

Where the right of possession and enjoyment of
the leased premises passes to the lessee, the
cases are practically agreed that, in the absence
of concealment or fraud by the landlord as to
some defect in the premises, known to him and
unknown to the tenant, the tenant takes the
premises in whatever condition they may be in,
thus assuming all risk of personal injury from
defects therein. An agreement by the landlord to
repair does not affect the rule, so far as
concerns the landlord’s liability for personal
injuries, due to defects in the premises leased
for a private purpose, although the existence of

5
 the defect is attributable to the failure to
repair.

. . . .

Generally it is held that, where complete
possession is surrendered to the lessee, no
action of tort can be maintained against the
lessor except for fraud or concealment, hence
that no recovery can be had for personal injuries
on account of the landlord’s failure to repair,
and that his covenant to repair renders him
liable only to an action for the breach of
covenant, in which recovery is limited to the
costs of repairs and any loss of use suffered by
the tenant after the lapse of a reasonable time
from giving the notice in which to make repairs.

185 Va. at 239−41, 38 S.E.2d at 469 (citations and internal

quotation marks omitted).

Isbell does not dispute these principles of the common

law. Instead, he asserts that the Act abrogated the common

law and provided a statutory cause of action in tort

allowing a tenant to recover damages for personal injuries

sustained as a result of a landlord’s violation of the

statutory duties to “[c]omply with the requirements of

applicable building and housing codes materially affecting

health and safety” and to “[m]ake all repairs and do

whatever is necessary to put and keep the premises in a fit

and habitable condition.” Code § 55-248.13(A)(1)-(2).

Isbell contends that the language used in Code §§ 55-

248.40, -248.21, and –248.4 signals the General Assembly’s

6
intent to abrogate the common law and create this statutory

cause of action.3 We do not agree.

3
Code § 55-248.40 states:
Any person adversely affected by an act or
omission prohibited under [the Act] may institute
an action for injunction and damages against the
person responsible for such act or omission in
the circuit court in the county or city in which
such act or omission occurred. If the court
finds that the defendant was responsible for such
act or omission, it shall enjoin the defendant
from continuance of such practice, and in its
discretion award the plaintiff damages as herein
provided.

Code § 55-248.21 states:
Except as provided in this chapter, if there
is a material noncompliance by the landlord with
the rental agreement or a noncompliance with any
provision of this chapter, materially affecting
health and safety, the tenant may serve a written
notice on the landlord specifying the acts and
omissions constituting the breach and stating
that the rental agreement will terminate upon a
date not less than 30 days after receipt of the
notice if such breach is not remedied in 21 days.
If the landlord commits a breach which is
not remediable, the tenant may serve a written
notice on the landlord specifying the acts and
omissions constituting the breach, and stating
that the rental agreement will terminate upon a
date not less than 30 days after receipt of the
notice.
If the landlord has been served with a prior
written notice which required the landlord to
remedy a breach, and the landlord remedied such
breach, where the landlord intentionally commits
a subsequent breach of a like nature as the prior
breach, the tenant may serve a written notice on
the landlord specifying the acts and omissions
constituting the subsequent breach, make
reference to the prior breach of a like nature,
and state that the rental agreement will

7
 The General Assembly has proclaimed, “The common law

of England, insofar as it is not repugnant to the

principles of the Bill of Rights and Constitution of this

Commonwealth, shall continue in full force . . . and be the

rule of decision, except as altered by the General

Assembly.” Code § 1-200. When construing a statute in

derogation of the common law, we apply several established

principles. “[A] statutory provision will not be held to

change the common law unless the legislative intent to do

terminate upon a date not less than 30 days after
receipt of the notice.
If the breach is remediable by repairs and
the landlord adequately remedies the breach prior
to the date specified in the notice, the rental
agreement will not terminate. The tenant may not
terminate for a condition caused by the
deliberate or negligent act or omission of the
tenant, a member of his family or other person on
the premises with his consent whether known by
the tenant or not. In addition, the tenant may
recover damages and obtain injunctive relief for
noncompliance by the landlord with the provisions
of the rental agreement or of this chapter. The
tenant shall be entitled to recover reasonable
attorneys’ fees unless the landlord proves by a
preponderance of the evidence that the landlord’s
actions were reasonable under the circumstances.
If the rental agreement is terminated due to the
landlord’s noncompliance, the landlord shall
return the security deposit in accordance with
§ 55-248.15:1.

Code § 55-248.4 defines “[a]ction” as a
“recoupment, counterclaim, set off, or other
civil suit and any other proceeding in which
rights are determined, including without
limitation actions for possession, rent, unlawful
detainer, unlawful entry, and distress for rent.”

8
so is plainly manifested.” Herndon v. St. Mary’s Hosp.,

Inc., 266 Va. 472, 476, 587 S.E.2d 567, 569 (2003); accord

Schwartz v. Brownlee, 253 Va. 159, 166, 482 S.E.2d 827, 831

(1997) (citing Wackwitz v. Roy, 244 Va. 60, 65, 418 S.E.2d

861, 864 (1992)); Boyd v. Commonwealth, 236 Va. 346, 349,

374 S.E.2d 301, 302 (1988) (citing Hannabass v. Ryan, 164

Va. 519, 525, 180 S.E. 416, 418 (1935)). “Statutes in

derogation of the common law are to be strictly construed

and not to be enlarged in their operation by construction

beyond their express terms.” Chesapeake & Ohio Ry. Co. v.

Kinzer, 206 Va. 175, 181, 142 S.E.2d 514, 518 (1965);

accord Blake Constr. Co. v. Alley, 233 Va. 31, 34, 353

S.E.2d 724, 726 (1987); Hyman v. Glover, 232 Va. 140, 143,

348 S.E.2d 269, 271 (1986). Accordingly, “[a] statutory

change in the common law is limited to that which is

expressly stated in the statute or necessarily implied by

its language because there is a presumption that no change

was intended.” Mitchem v. Counts, 259 Va. 179, 186, 523

S.E.2d 246, 250 (2000); accord Couplin v. Payne, 270 Va.

129, 136, 613 S.E.2d 592, 595 (2005); Boyd, 236 Va. at 349,

374 S.E.2d at 302; Strother v. Lynchburg Trust & Sav. Bank,

155 Va. 826, 833, 156 S.E. 426, 428 (1931). “When an

enactment does not encompass the entire subject covered by

the common law, it abrogates the common-law rule only to

9
the extent that its terms are directly and irreconcilably

opposed to the rule.” Boyd, 236 Va. at 349, 374 S.E.2d at

302; accord Couplin, 270 Va. at 136, 613 S.E.2d at 595;

Mitchem, 259 Va. at 186−87, 523 S.E.2d at 250.

In Wicks v. City of Charlottesville, 215 Va. 274, 208

S.E.2d 752 (1974), we explained the reason for applying

these principles:

[The General Assembly] is presumed to have known
and to have had the common law in mind in the
enactment of a statute. The statute must
therefore be read along with the provisions of
the common law, and the latter will be read into
the statute unless it clearly appears from
express language or by necessary implication that
the purpose of the statute was to change the
common law.

Id. at 276, 208 S.E.2d at 755; accord Keister’s Adm’r v.

Keister’s Ex’rs, 123 Va. 157, 162, 96 S.E. 315, 317 (1918).

Employing these established canons of construction, we

conclude that the General Assembly did not intend to

abrogate the common law rule that a landlord is not liable

in tort for a tenant’s personal injuries sustained as a

result of the landlord’s failure to repair premises under

the tenant’s possession and control. Nowhere in the Act is

there express language creating a cause of action in tort

for a landlord’s breach of duties imposed by the Act. Nor

is such a cause of action necessarily implied by the Act’s

language.

10
 Instead, a close examination of the Act as a whole

reveals an integrated statutory scheme governing

contractual relationships between landlords and tenants.

Indeed, the General Assembly expressly stated that the Act

“shall apply to all rental agreements entered into on or

after July 1, 1974, which are not” otherwise specifically

exempted from its reach. Code § 55-248.3:1 (emphasis

added). As the Act defines them, “[r]ental agreement[s]”

are “agreements, written or oral, . . . embodying the terms

and conditions concerning the use and occupancy of a

dwelling unit and premises.” Code § 55-248.4.

In furtherance of its purpose “to simplify, clarify,

modernize and revise the law governing the rental of

dwelling units and the rights and obligations of landlords

and tenants,” Code § 55-248.3, the Act imposes certain

duties on landlords. The provisions of Code § 55-248.13(A)

require a landlord to “1. Comply with the requirements of

applicable building and housing codes materially affecting

health and safety; [and] 2. Make all repairs and do

whatever is necessary to put and keep the premises in a fit

and habitable condition.” At common law, a landlord would

not have these responsibilities unless the landlord

expressly covenanted to assume them in an agreement with

the tenant. See Luedtke, 190 Va. at 211, 56 S.E.2d at 82

11
(a landlord was under no implied covenant to repair the

demised premises). Nevertheless, we do not make the

inference urged by Isbell that the imposition of these

statutory duties on a landlord necessarily gives rise to

liability in tort for the landlord’s failure to fulfill

them.

We find further evidence that the General Assembly did

not intend to provide relief in the Act beyond that

normally available for a breach of contract when we compare

the Act’s provisions concerning a landlord’s duties to

those set forth in the Uniform Residential Landlord and

Tenant Act (URLTA). The language appearing in URLTA

§ 2.104(a) is identical to the terms of Code § 55-248.13(A)

at issue here. The drafters’ comment accompanying URLTA

§ 2.104 states, “Generally duties of repair and maintenance

of the dwelling unit and the premises are imposed upon the

landlord by this section.” It continues, “This section

follows the warranty of habitability doctrine now

recognized” in several jurisdictions. URLTA § 2.104 cmt.;

see also Hinson v. Delis, 102 Cal. Rptr. 661 (Cal. Ct. App.

1972), overruled on other grounds by Knight v.

Hallsthammar, 623 P.2d 268, 273 n.7 (Cal. 1981); Javins v.

First Nat’l Realty Corp., 428 F.2d 1071 (D.C. Cir. 1970);

Lemle v. Breeden, 462 P.2d 470 (Haw. 1969); Jack Spring,

12
Inc. v. Little, 280 N.E.2d 208 (Ill. 1972); Rome v. Walker,

196 N.W.2d 850 (Mich. Ct. App. 1972); Kline v. Burns, 276

A.2d 248 (N.H. 1971); Pines v. Perssion, 111 N.W.2d 409

(Wis. 1961). In these cases cited by the drafters of

URLTA, the relief afforded to the respective tenants was

consistent with our common law regarding the extent of a

landlord’s liability for breach of a covenant to repair

leased premises. Compare Kline, 276 A.2d at 252 (“If a

material or substantial breach of the implied warranty of

habitability is found, the measure of the tenant’s damages

is the difference between the agreed rent and the fair

rental value of the premises as they were during their

occupancy by the tenant in the unsafe, unsanitary or unfit

condition.”), with Caudill, 185 Va. at 240-41, 38 S.E.2d at

469 (holding a landlord’s “covenant to repair renders him

liable only to an action for the breach of covenant, in

which recovery is limited to the costs of repairs and any

loss of use suffered by the tenant after the lapse of a

reasonable time from giving the notice in which to make

repairs”).

Neither do the provisions of the Act upon which Isbell

relies expressly state or necessarily imply a legislative

intent to provide damages for a tenant’s personal injuries

sustained as a result of a landlord’s noncompliance with

13
the duties imposed by Code § 55-248.13(A)(1)-(2). Rather,

the remedies provided in the Act for a landlord’s violation

of these statutory obligations are more akin to those

available in an action for breach of contract than the type

of damages recoverable in an action in tort for personal

injury.

Pursuant to Code § 55-248.21, a tenant’s remedy for a

landlord’s “material noncompliance . . . with the rental

agreement or a noncompliance with any provision of [the

Act], materially affecting health and safety,” is

termination of the rental agreement after providing written

notice to the landlord and an opportunity for the landlord

to correct the breach. A tenant may also recover damages

and obtain injunctive relief.4 The focus of this section is

clearly to provide a tenant with the right to terminate the

rental agreement if a landlord fails to comply “with any

provision . . . materially affecting health and safety.”

That remedy, along with damages and injunctive relief, is

available exclusively to “the tenant.” The Act

specifically provides that the term “[t]enant” does “not

include . . . an authorized occupant, . . . a guest or

invitee, or . . . any person who guarantees or cosigns the

4
Alternatively, a tenant may file an action for
assertion and pay the amount of rent required under the
rental agreement into court. Code § 55-248.27.

14
payment of the financial obligations of a rental agreement

but has no right to occupy a dwelling unit.” Code § 55-

48.4. That the General Assembly limited the availability

of damages under Code § 55-248.21 to persons in contractual

privity with landlords, i.e., tenants, demonstrates that it

intended to provide for consequential damages flowing from

a breach of contract and not damages for personal injury

caused by tortious conduct. To conclude otherwise would

mean that a tenant could obtain damages for personal

injury, but a person whose recovery for a landlord’s

tortious acts or omissions is, ordinarily, derivative of

the tenant’s could not do so. See Oliver, 192 Va. at 543,

65 S.E.2d at 572 (“The duties and liabilities of the

landlord to the guests and invitees of the tenant, with

respect to personal injuries, are ordinarily the same as

those which the landlord owes to the tenant. They stand in

the tenant’s shoes.”) If the damages provided for in Code

§ 55-248.21 lie only in an action for breach of contract,

then limiting their availability to tenants, because they

are in privity with landlords, is entirely consistent with

our jurisprudence in the area of damages.5 See

5
The Act also imposes certain duties on tenants,
including the responsibility to “[c]omply with all
obligations primarily imposed upon tenants by applicable
provisions of building and housing codes materially

15
Sensenbrenner v. Rust, Orling & Neale, Architects, Inc.,

236 Va. 419, 425, 374 S.E.2d 55, 58 (1988).

While Code § 55-248.40, the other section of the Act

that Isbell chiefly cites in support of his claim of a

statutory cause of action, does not limit its applicability

specifically to tenants, a careful reading of its language

nonetheless discloses a legislative intent to provide

contract remedies, not a recovery in tort. The General

Assembly’s prescribed mode for awarding relief under this

section is inconsistent with Isbell’s position for at least

two reasons. First, the provisions of Code § 55-248.40

commit the factual determination whether a defendant was

responsible for an act or omission prohibited by the Act

entirely to “the court,” providing no role to a jury. Such

an assignment of the fact-finding duty solely to the court

is entirely appropriate in an equitable claim, but at odds

affecting health and safety;” and to “[k]eep that part of
the premises he occupies and uses as clean and safe as the
condition of the premises permit.” Code § 55-248.16(A)(1)–
(2). A landlord’s remedies for a tenant’s “material
noncompliance . . . with the rental agreement or a
violation of § 55-248.16 materially affecting health and
safety” include termination of the rental agreement as well
as damages and injunctive relief. Code § 55-248.31(A) and
(G). Given the similarity between these provisions and
Code §§ 55-248.13(A)(1)–(2) and –248.21, if we adopted
Isbell’s position in this case, a landlord, by implication,
would have a statutory cause of action in tort for personal
injuries sustained as a result of a tenant’s failure to
fulfill the duties imposed by the Act.

16
with the role of the court vis-à-vis the jury in an action

at law for damages, such as an action for personal injury.

See Bethel Inv. Co. v. City of Hampton, 272 Va. 765, 769,

636 S.E.2d 466, 469 (2006) (The right to a jury trial under

Va. Const., art. I, § 11 “is not applicable to proceedings

in which there was no right to jury trial when the

Constitution was adopted, such as ordinary suits in

chancery, but it is clearly applicable to common-law

actions seeking to recover damages.”) (citing Stanardsville

Vol. Fire Co. v. Berry, 229 Va. 578, 583, 331 S.E.2d 466,

469 (1985)); see also Rule 3:21(a). Second, to allow the

question whether the tenant may recover damages for his or

her personal injuries to turn on the court’s discretion

would be inconsistent with the recognized principle of tort

law that “a plaintiff is entitled to compensation

sufficient to make him whole.” Schickling v. Aspinall, 235

Va. 472, 474−75, 369 S.E.2d 172, 174 (1988) (emphasis

added).6

Furthermore, the provision in Code § 55-248.40

allowing a court to enjoin a defendant from continuing an

act or omission prohibited by the Act and to award damages

6
We also find unpersuasive Isbell’s argument that the
portion of the Act’s definition of the term “[a]ction”
referring to “other civil suit and any other proceeding in
which rights are determined,” Code § 55-248.4, contemplates
a tort action for personal injury.

17
in its discretion conforms to the longstanding authority of

chancery courts to award damages incident to an award of

equitable relief. See, e.g., Advanced Marine Enters., Inc.

v. PRC Inc., 256 Va. 106, 122, 501 S.E.2d 148, 157 (1998);

White v. White, 181 Va. 162, 169, 24 S.E.2d 448, 451

(1943). Notably, Code § 55-248.40 also limits the damages

that a court can award to “damages as herein provided.”

Thus, unless another part of the Act provides for damages

in tort, a court has no authority to award that type of

relief. As we have already stated, we find no such

provision.

CONCLUSION

Reading the Act as a whole, we conclude that the

General Assembly did not plainly manifest an intention,

either through express language or by necessary

implication, to abrogate the common law and make a landlord

liable in tort for a tenant’s personal injuries sustained

on leased premises within the tenant’s control and

possession as a result of the landlord’s breach of duties

imposed by the Act. Instead, the Act provides a

comprehensive scheme of landlords’ and tenants’ contractual

rights and remedies. Therefore, we will affirm the

judgment of the circuit court.

Affirmed.

18