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 
2

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. 
3

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, 
4

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. 
5

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 
6

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 
7

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 
8

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.” 
9

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 
10

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. 
11

 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 
12

(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, 
13

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 
14

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. 
15

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 
16

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.
17

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. 
18

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.