PRESENT: All the Justices 

WILLIAM M. SALES 

 OPINION BY 

v. Record No. 090143 JUSTICE S. BERNARD GOODWYN 

 February 25, 2010 

KECOUGHTAN HOUSING COMPANY, 

LTD., ET AL. 

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON 

Louis R. Lerner, Judge 

 In this appeal we consider whether the circuit court erred 

in sustaining a demurrer filed by a landlord and its agent, 

when a tenant claimed to have suffered personal injuries and 

property damage as a result of misrepresentations and negligent 

repairs. 

William M. Sales (Sales) filed a complaint against 

Kecoughtan Housing Company (Kecoughtan) and Abbitt Management, 

Inc. (Abbitt) alleging one count of defective repair, one count 

of actual fraud and one count of constructive fraud. 

Kecoughtan and Abbitt filed a demurrer to the complaint. The 

circuit court sustained the demurrer as to all three counts and 

granted Sales leave to amend. Sales filed an amended 

complaint, expanding upon but including the same three counts. 

Kecoughtan and Abbitt both filed demurrers to the amended 

complaint. After argument, the circuit court sustained the 

demurrers as to all counts and dismissed the amended complaint 

with prejudice. Sales appeals.
Facts 

The circuit court decided this case upon a demurrer 

without an evidentiary hearing. Thus, we will summarize the 

facts as alleged in the pleadings. Eagle Court Condominium 

Unit Owners Ass’n v. Heatilator, Inc., 239 Va. 325, 327, 389 

S.E.2d 304, 304 (1990). In doing so, we consider the facts 

stated and all those reasonably and fairly implied in the light 

most favorable to the nonmoving party, Sales. Yuzefovsky v. 

St. John’s Wood Apartments, 261 Va. 97, 102, 540 S.E.2d 134, 

137 (2001). 

Sales entered into a rental agreement for an apartment 

owned by Kecoughtan. Throughout the time of Sales’ tenancy, 

Kecoughtan employed Abbitt to manage the apartment where Sales 

resided. After possessing the apartment for several months, 

Sales informed Abbitt that there was mold growing in the 

property and requested repair. Abbitt, acting as an agent for 

and in concert with Kecoughtan, entered the property to repair 

the moldy areas of the property. Thereafter, Abbitt repeatedly 

told Sales that the mold problem had been remedied and that the 

property was safe for habitation. Based upon Abbitt’s 

representations about the repairs, Sales continued to reside in 

the apartment and made payments pursuant to the terms of the 

rental agreement. 

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A few months later, mold began growing in Sales’ eye. 

Sales claims this has caused him serious and permanent injury 

for which he has received, and in the future will continue to 

receive, medical and hospital care and treatment. He also 

alleges that mold infested and destroyed all his personal 

property kept in the apartment. 

In his amended complaint, Sales claims that Abbitt 

performed the mold repairs in a careless, reckless and 

negligent manner, resulting in the continued growth and spread 

of mold in the property. Specifically, Sales claims that 

Abbitt painted over the mold and did not perform any other 

remediation, and that Abbitt knew or should have known that 

painting over the mold would not remedy the mold problem. 

Sales alleges that as a result of the negligence of Kecoughtan 

and Abbitt in repairing the property, he suffered serious and 

permanent injuries to his eye as well as damage to his personal 

property. 

Sales also asserts causes of action for actual and 

constructive fraud, claiming that Kecoughtan and Abbitt knew 

that the repairs made by Abbitt were totally insufficient, but 

knowingly misrepresented to Sales that the repairs were 

adequate, that the mold problem had been remedied and that the 

property was safe for habitation, with the intent of inducing 

Sales to continue in his tenancy in the property. Sales claims 

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that he reasonably relied on these false representations and 

was damaged as a result. Sales also claims that if the 

misrepresentations were innocently or negligently made, he 

still reasonably relied upon them and was damaged as a result 

thereof. 

Analysis 

 The purpose of a demurrer is to determine whether a 

complaint states a cause of action upon which relief may be 

granted. Tronfeld v. Nationwide Mutual Ins. Co., 272 Va. 709, 

712-13, 636 S.E.2d 447, 449 (2006); Welding, Inc. v. Bland 

County Service Auth., 261 Va. 218, 226, 541 S.E.2d 909, 913 

(2001). “A demurrer admits the truth of all properly pleaded 

material facts. ‘All reasonable factual inferences fairly and 

justly drawn from the facts alleged must be considered in aid 

of the pleading.’” Dodge v. Randolph-Macon Woman’s College, 

276 Va. 1, 5, 661 S.E.2d 801, 803 (2008) (citation omitted); 

accord Tronfeld, 272 Va. at 713, 636 S.E.2d at 449; Fuste v. 

Riverside Healthcare Ass’n, 265 Va. 127, 131, 575 S.E.2d 858, 

861 (2003). On appeal, the granting of a demurrer is reviewed 

de novo because it is a question of law. Mark Five 

Construction, Inc. v. Castle Contractors, 274 Va. 283, 287, 645 

S.E.2d 475, 477 (2007). 

Sales claims that his amended complaint properly pleads a 

cause of action for defective repair. He argues that the 

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amended complaint states that Abbitt, acting as agent for and 

in concert with Kecoughtan, entered the property for the 

purpose of making repairs. Sales claims that Abbitt performed 

the repairs in a careless, reckless and negligent manner, and 

that as a result of the defendants’ negligence, mold began 

growing in Sales’ eye and infested and destroyed Sales’ 

personal property in the apartment. 

Kecoughtan and Abbitt claim that Sales failed to state a 

cause of action for negligent repair because there is no 

allegation that the defective condition resulted from Abbitt’s 

repairs. Kecoughtan and Abbitt argue that in order to be 

liable for breach of the duty to make repairs in a nonnegligent fashion, the repairs must create the danger that 

causes the injury, i.e., the repairs must result in a new 

danger. They point out that because the painting over the mold 

did not create any new defective condition, Kecoughtan and 

Abbitt should not be held liable for the injuries resulting 

from the mold. 

Although a landlord does not have a common law duty to 

make repairs after delivering possession to the tenant, see

Paytan v. Roland, 208 Va. 24, 26, 155 S.E.2d 36, 37 (1967), 

where the landlord enters leased premises for the purpose of 

making repairs, he must use reasonable care in performing the 

work. Holland v. Shively, 243 Va. 308, 311, 415 S.E.2d 222, 

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224 (1992). “In order to recover against the landlord for 

injuries arising from a defective condition resulting from the 

repairs, the tenant has the burden of proving that the landlord 

failed to use reasonable care. The mere fact that a defect 

remained after the work was done is not alone sufficient.” 

Kesler v. Allen, 233 Va. 130, 133, 353 S.E.2d 777, 779-80 

(1987) (citing Oden v. Housing Authority, 203 Va. 638, 640, 125 

S.E.2d 843, 845 (1962)). 

In Holland, the plaintiff was injured on the steps of the 

porch of the subject property following the landlord’s 

negligent repair of the porch. 243 Va. at 310, 415 S.E.2d at 

223. As in the instant case, the danger that led to the 

Holland plaintiff’s injury was not a new condition created by 

the landlord’s attempt to repair. The plaintiff was injured by 

the faulty steps, which existed before and after the landlord’s 

repair. Id. However, this Court stated: 

We hold that the record contains sufficient evidence 

upon which the jury could have relied to find that Mr. 

Shively was negligent. Before Mrs. Holland fell, her 

husband had fallen through the porch. Thereafter Mr. 

Shively entered the premises and repaired a portion of 

the porch. The jury was entitled to find that Mr. 

Shively was negligent because his actions of merely 

removing the rotten boards did not correct the defects 

in the steps which are an integral component of the 

porch. 

Id. at 311, 415 S.E.2d at 224. 

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 Applying these well-established principles, we hold that 

Sales pled a cause of action for negligent repair sufficient to 

withstand a demurrer. The amended complaint states that 

Abbitt, acting as agent for and in concert with Kecoughtan, 

entered the property for the purpose of making repairs, that it 

performed the repairs in a careless, reckless and negligent 

manner, and that as a result of the negligent conduct, mold 

began growing in Sales’ eye and infested his property, causing 

personal injury and property damage. The circuit court erred 

in granting the demurrer on the defective repair cause of 

action, and the plaintiff should be given the opportunity to 

prove his allegations concerning the negligence of Kecoughtan 

and Abbitt and that such negligence proximately resulted in 

Sales’ alleged damages. 

 Sales asserts causes of action for fraud, both actual and 

constructive, based on Kecoughtan’s and Abbitt’s alleged 

misrepresentations that the property was safe for habitation 

and that the mold problem had been remedied. Kecoughtan and 

Abbitt argue that Sales fails to state a cause of action for 

actual or constructive fraud because the claimed 

representations that the apartment was safe for habitation and 

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that the mold problem had been remedied were matters of opinion 

and not statements of fact.*

 In order to state a cause of action for fraud, a plaintiff 

must plead that there was “a false representation of a material 

fact, made intentionally and knowingly, with intent to 

mislead.” Elliott v. Shore Stop, Inc., 238 Va. 237, 244, 384 

S.E.2d 752, 756 (1989). The plaintiff must also plead that he 

relied on that false representation and his reliance led to 

damages. Id. In order to state a cause of action for 

constructive fraud, the plaintiff is only required to plead 

that the false representation was made innocently or 

negligently, while all other elements remain the same. 

Prospect Dev. Co. v. Bershader, 258 Va. 75, 86, 515 S.E.2d 291, 

297 (1999). An action based on fraud may not be predicated on 

unfulfilled promises or statements about future events. Id. 

Further, the statement that serves as the foundation for an 

action in fraud, either actual or constructive, must be a 

misrepresentation of an existing fact and not the expression of 

an opinion. McMillion v. Dryvit Systems, Inc., 262 Va. 463, 

471, 552 S.E.2d 364, 368-69 (2001). 

 *

 An appellate court’s consideration of the demurrer on 

appeal is limited to the grounds raised by the demurrer. 

McMillion v. Dryvit Systems, Inc., 262 Va. 463, 470, 552 S.E.2d 

364, 368 (2001). 

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 Whether a statement is a statement of fact or a statement 

of opinion is determined on a case-by-case basis, “taking into 

consideration the nature of the representation and the meaning 

of the language used as applied to the subject matter and as 

interpreted by the surrounding circumstances.” Packard 

Norfolk, Inc. v. Miller, 198 Va. 557, 562, 95 S.E.2d 207, 211 

(1956). In Packard, this Court held that the statement that a 

car was in perfect condition was “a representation as to the 

present quality or character of the article” and “clearly a 

representation of fact and not a promise as to something to be 

done in the future.” Id. at 563, 95 S.E.2d at 211. In Tate v. 

Colony House Builders, 257 Va. 78, 83-84, 508 S.E.2d 597, 600 

(1999), this Court stated that “the new dwelling house was fit 

for habitation” was a statement of fact because it was a 

representation of the present quality or character of the 

property. 

 In this case, we hold that Abbitt’s alleged statements 

that the apartment was safe for habitation and that the mold 

problem had been remedied were statements of the present 

quality or character of the instant property, and thus 

statements of fact rather than opinion. These statements are 

alleged in the amended complaint to be misrepresentations of a 

material fact that were made to Sales, that Sales relied upon 

them, and that he was damaged as a result thereof. Thus, 

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whether made intentionally or negligently, these alleged 

statements may serve as a basis for an action for actual or 

constructive fraud. The circuit court erred in sustaining the 

demurrer and dismissing Sales’ claims for actual and 

constructive fraud. 

Conclusion 

For the foregoing reasons, we hold that the circuit court 

erred in sustaining the defendants’ demurrer to Sales’ amended 

complaint. Accordingly, we will reverse the judgment of the 

circuit court and remand this matter to the circuit court for 

further proceedings. 

Reversed and remanded.

 

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