Parrish v. Vance, Record No. 1687-22-4 (Va. Ct. App. Mar. 12, 2024)
The Court of Appeals holds that a landlord and tenant cannot waive the warranty of habitability provided by the Virginia Residential Landlord Tenant Act.
Facts. On September 2, 2021, Mikeya Vance leased a single-family home from Christopher Parrish. Before Vance moved into the home, she did a virtual walk-through. The house was filthy during the walk-through, and Parrish promised to clean it before the lease began. When Vance moved in, however, the house was infested with fleas; she moved out ten days later due to the infestation. Parrish told Vance to call an exterminator and he would cover $200 of the costs. When the exterminator came, they advised that the house needed several treatments. Over the next several months, despite various exterminators visiting the house, the flea infestation continued.
So, on January 5, 2022, Vance filed a Tenant’s Assertion and Complaint against Parrish in the General District Court. That court entered judgment against Vance, so she appealed to the circuit court where the case was set for a bench trial.
Before the trial, Parrish filed a motion in limine to exclude expert testimony from Vance’s pest control technician, including his report, because Vance had failed to timely designate him as an expert. The court ruled that the technician could not offer expert testimony, but that since he had treated the property, his testimony and report were admissible to the extent they reflected his personal observations. During Parrish’s cross-examination of the technician, however, he moved to admit the entirety of the report. After admission of the report, the technician offered opinion testimony that the circuit court admitted over Parrish’s objection. After the one-day trial, the circuit court ruled in Vance’s favor.
Parrish appealed, arguing that the lease agreement transferred responsibility for “controlling and eliminating” the fleas on Vance, the tenant. Vance countered that the Virginia Residential Landlord Tenant Act (VRLTA) imposes a nonwaivable warranty of habitability on residential leases, and that the flea infestation and Parrish’s failure to resolve it breached that warranty.
Issues. (1) Whether a landlord and tenant can contract to place the responsibility to mitigate infestations on the tenant. (2) Whether the evidence was sufficient to establish the factual conditions required for recovery under the VRLTA. (3) Whether the trial court erred in allowing the technician’s opinion testimony and report to come into evidence.
Holdings. (1) No. The VRLTA provides tenants a warranty of habitability that a landlord and tenant cannot waive by agreement. (2) Yes. The evidence established a flea infestation of which Parrish was properly notified and failed to remedy despite reasonable opportunity to do so. (3) No. Parrish first introduced the evidence he sought to exclude.
Notes. (1) The VRLTA imposes a duty on landlords to “make repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition.” This language provides tenants a warranty of habitability that a landlord and tenant cannot waive by agreement. An infestation of fleas is “clearly a condition that can make a dwelling unit not livable” and violates this warranty of habitability. Thus, the clause in the lease agreement that attempted to shift the burden of dealing with infestations on the tenant was unenforceable.
(2) Under the VRLTA, a tenant may request relief from a condition that exists on the leased premises if they “constitute a material noncompliance by the landlord with the rental agreement,” “constitute a material noncompliance by the landlord with provisions of law,” or “if not promptly corrected, will constitute a fire hazard or serious threat to the life, health, or safety of occupants of the premises.” A flea infestation can satisfy several of those conditions. To obtain relief, the tenant must give the landlord written notice of the condition, the landlord must refuse to remedy the situation after having a reasonable opportunity to do so, and the tenant must pay into the court the amount of rent called for under the rental agreement. A landlord can rebut the tenant’s case by establishing that the complained-of condition doesn’t exist, was remedied, was caused by the tenant, or that the tenant unreasonably refused entry on the premises for the landlord to correct the problem. Here, Vance established a condition on the premises that “constituted a material noncompliance by the landlord with the provisions of law,” gave Parrish written notice of the condition, established that Parrish refused to remedy the condition after having the opportunity to do so, and paid into the court the amount of rent called for under the rental agreement. She thus complied with the VRLTA’s requirements and was entitled to its remedies.
(3) A party “may not invite error then attempt to take advantage of the situation created by his own wrong.” Here, the technician properly authenticated the report by identifying it as a true and accurate copy of the report that he drafted. Parrish asked for the technician’s report to be admitted “in its entirety,” including the portions that the circuit court previously excluded as expert testimony, therefore he cannot complain about its admission.