PRESENT:   Carrico, C.J., Compton, Lacy, Keenan, Koontz, and
           Kinser, JJ., and Whiting, Senior Justice

LINDA H. WOHLFORD
                                            OPINION BY
v.   Record No. 990320         SENIOR JUSTICE HENRY H. WHITING
                                          January 14, 2000
GLADYS A. QUESENBERRY

             FROM THE CIRCUIT COURT OF BEDFORD COUNTY
                    James W. Updike, Jr., Judge

        We are required to determine whether the Uniform

Statewide Building Code (the BOCA Code) has modified the common

law rule that a tenant who has exclusive possession and control

of a premises, absent an agreement to the contrary, is

responsible for its maintenance and repair.    Since the court

sustained a demurrer to a tenant's counterclaim asserting that

the common law rule was so modified, we state the facts as

alleged in the counterclaim.

        In July 1997, Gladys A. Quesenberry (the landlord) rented

a residence in Bedford County to Linda H. Wohlford (the tenant)

under a month-to-month lease.    Nothing was said in their oral

lease about who would maintain the premises.

        In the fall of 1997, the roof leaked and the furnace

malfunctioned, both conditions causing damage to the tenant's

personal property.   Additionally, soot and fumes from the

malfunctioning furnace caused personal injury to the tenant.

      Upon the tenant's failure to pay the rent, the landlord

filed an unlawful detainer warrant against her in the general
district court, and the tenant removed this action to the

Circuit Court of Bedford County.       The tenant filed a

counterclaim in which she asserted the above facts.

     The tenant contended that the landlord's duties of

maintenance and repair of the defective conditions in the

premises arose under the National Property Maintenance Code (the

Maintenance Code, PM-__), a part of the codes and regulations

adopted by the Board of Housing and Community Development (the

Board) pursuant to Code § 36-98. 1     Accordingly, the tenant

contended that the landlord was guilty of negligence per se in

her violations of the code provisions.

     The court sustained the landlord's demurrer and dismissed

the counterclaim.   Thereafter, the tenant vacated the premises,

and the landlord nonsuited her unlawful detainer claim.      The

tenant appeals the dismissal of her counterclaim.

     The tenant claims that the landlord's duties of repair and

maintenance were expressly created in the Maintenance Code.        The

following Maintenance Code sections require (1) that "fuel

burning appliances shall be properly installed and maintained in

a safe working condition, and shall be capable of performing the



1
  Code § 36-99 also authorizes the Board to prescribe appropriate
regulations having due regard to generally accepted standards
recommended by nationally recognized organizations. The BOCA
and the Maintenance Codes were some of the recommended standards
adopted by the Board.

                                   2
intended function," PM-603.1, and (2) that "[t]he roof and

flashing shall be sound, tight and not have defects that admit

rain."    PM-304.7

          The parties agree that these duties exist under the

Maintenance Code.    However, they disagree as to who has these

duties in this case.    Because she leased the entire premises,

the tenant recognizes that she would have had those duties at

common law since the lease is silent on the subject.    See Kesler

v. Allen, 233 Va. 130, 133, 353 S.E.2d 777, 779 (1987); Paytan

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

tenant contends, however, that the BOCA and Maintenance Codes

shifted these responsibilities to the landlord in this case.

          The landlord responds that Code § 36-97 and Section 202.0

of the BOCA Code embrace the common law rule by their inclusion

of a lessee in control of a building or structure in their

definitions of an "owner" as one who has the described repair

and maintenance responsibilities. 2   The landlord also notes that




2
    The relevant provisions of Code § 36-97 are:

As used in this chapter, unless the context or subject matter
requires otherwise, the following words or terms shall have the
meaning herein ascribed to them, respectively:

. . . .

"Owner" means the owner or owners of the freehold of the
premises or lesser estate therein, a mortgagee or vendee in
                                  3
Section 201.1 of the BOCA Code provides that, unless otherwise

expressly stated, its specific definition of listed words, one

of which is an "owner," shall have the listed meanings in

applying its provisions.   The landlord points out that Section

201.3 of the BOCA Code provides "[w]here terms are not defined

in this code and are defined in [three other listed codes, none

of which is the Maintenance Code] such terms shall have the

meanings ascribed to them as in those codes."

       Because the term "owner" is defined in Code § 36-97 and

in the BOCA Code, we conclude that their definition applies to

the tenant.   The tenant claims, however, that in requiring the

tenant to permit the landlord access to the premises for the

discharge of landlord maintenance and repair responsibilities,

the Maintenance Code implies a landlord's right to enter the

premises.   Accordingly, the tenant reasons that she never had

the necessary control of the premises required either at common

law or under the Codes' definition of "owner."

       The tenant's reasoning is flawed because its major

premise is that the landlord has the maintenance and repair

responsibilities specified in the Maintenance Code.   As we

stated earlier, the BOCA and Maintenance codes impose




possession, assignee of rents, receiver, executor, trustee, or
lessee in control of a building or structure. (Emphasis added.)

                                 4
responsibilities on the "owner" of the premises as defined in

Code § 36-97 and the BOCA Code.   Because the tenant was the

person in control of the premises, not the landlord, the tenant

is the defined "owner" under the facts of this case, and the

tenant has the maintenance and repair responsibilities claimed.

Hence, we conclude that under the circumstances described in

this case, none of the code sections relied upon created a

liability upon the landlord for the damages and injuries alleged

in the counterclaim.

       Accordingly, the judgment of the trial court will be

                                                         Affirmed.




                                  5
