Present: Hassell, C.J., Lacy, Koontz, Lemons, and Agee, JJ., and
Carrico and Russell, S.JJ.

SELECT MANAGEMENT RESOURCES, LLC, ET AL.
                                           OPINION BY
v.   Record No. 061168          SENIOR JUSTICE HARRY L. CARRICO
                                         April 20, 2007
THE RUNNYMEDE CORPORATION, ET AL.


           FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
                        Randall D. Smith, Judge

        At issue in this case is a provision in a lease dated

November 8, 2004, between The Runnymede Corporation, as

landlord, and Select Management Resources, LLC, as tenant, for

the rental of a commercial building located in the City of

Chesapeake.    The provision is found in Paragraph 18 of the lease

and reads in pertinent part as follows:    “Tenant covenants not

to make (or suffer to be made) any alterations or improvements

therein or thereto . . . without prior written permission of

Landlord, which approval shall not unreasonably be withheld.”

The lease is for a term of five years commencing January 1,

2005, with the option of one three-year renewal.

        Select Management Resources trades under the name of

“LoanMax” and operates a loan office providing loans on

automobile titles in the building leased from Runnymede.       The

building is constructed of natural stone with off-white pebble

trim.    On January 14, 2005, Select Management commenced to paint

the exterior of the building bright yellow with red trim.
     On March 8, 2005, after the paint job was completed,

Runnymede sent a letter to Select Management stating that the

latter had painted the exterior of the building without asking

or receiving Runnymede’s prior permission and was therefore in

default under the terms of the lease.   The letter further stated

that unless the building was restored to its original state

within 30 days, Runnymede would take necessary steps to correct

the situation at Select Management’s expense.

     Select Management then asked that it “be allowed to leave

the building exterior as it is currently painted until the lease

expires, at which time [Select Management] would agree to

restore it to its original state.”   Select Management did not

offer to establish an escrow or otherwise guarantee the

restoration of the premises.   By letter dated March 31, 2005,

Runnymede denied this request, “as there was no prior permission

given by the Landlord for [Select Management] to paint the

exterior of the building” and that Select Management was still

in default and must restore the building to its original state

within 30 days.

     Select Management did not restore the building within the

thirty-day period but on April 7, 2005, filed in the trial court

a bill of complaint for injunctive and declaratory relief

against Runnymede, requesting an injunction preventing Runnymede

from holding Select Management in default or taking any legal


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proceedings of default against Select Management.   The bill also

sought a declaration that the painting of the building was “a

cosmetic change” and not “an alteration . . . pursuant to

paragraph 18 of the Lease,” or, if the painting was an

alteration, that consent by Runnymede was unreasonably withheld.

     At trial, Select Management presented evidence that it has

some 200 loan offices across the country, including 24 in

Virginia.   The exterior walls of all freestanding offices are

painted bright yellow with red trim.   Select Management

considers this color pattern important because it distinguishes

LoanMax from its competitors and allows the public to easily

identify the LoanMax brand.    The building is located in a

commercial district and stands between a McDonald’s Restaurant

on one side and a Dairy Queen Restaurant on the other.     On the

same street are a Jiffy Lube, a Rally’s Hamburgers, and a

Popeye’s Chicken Restaurant.    All these buildings have color

schemes similar to that of LoanMax.    There are no city

restrictions that prohibit painting the building according to

the LoanMax color scheme.

     Runnymede introduced into evidence an estimate it had

received from a contractor for the removal of the yellow paint

from the stone and mortar joints and the repainting of the red

trim with an off-white color.   The yellow paint will have to be

removed from the stone and mortar joints with chemicals and


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water blasting, and the red paint on the trim will simply be

coated over.   The work will consume thirty days at a cost of

$18,676.00.    Runnymede also introduced into evidence color

photographs of the building in its before-paint and after-paint

state.

     In a final order, the trial court found that Select

Management’s “painting of the building is an ‘alteration’ as

that word is used and meant in the lease” and that Runnymede’s

“permission for the alteration has not been unreasonably

withheld.”    The court denied Select Management’s request for an

injunction.    We awarded Select Management this appeal.

     On appeal, Select Management argues that the trial court

erred in holding that the painting of the building constituted

an alteration within the meaning of Paragraph 18 of the lease.

Select Management says that painting the exterior of a building

is cosmetic in nature, that the paint was readily removable from

the building in question, and, hence, the painting of the

building did not constitute an alteration requiring Service

Management to seek the permission of Runnymede before doing the

painting.    Select Management also argues that if the painting

was an alteration, Runnymede unreasonably withheld its consent.

     Our cases provide only limited assistance in defining the

term “alteration.”   We said in Bolin v. Laderberg, 207 Va. 795,

801, 153 S.E.2d 251, 256 (1967), that the word “alteration,”


                                  4
when given its usual meaning and viewed in the context in which

it is used in the lease, “can mean only something changed about

the premises.”

        Black’s Law Dictionary 85 (8th ed. 2004) defines the term

as follows:

        A substantial change to real estate, esp[ecially] to a
        structure, usu[ally] not involving an addition to or
        removal of the exterior dimensions of a building’s
        structural parts. Although any addition to or improvement
        of real estate is by its very nature an alteration, real-
        estate lawyers habitually use alteration in reference to a
        lesser change. Still, to constitute an alteration, the
        change must be substantial – not simply a trifling
        modification.

        Other jurisdictions have considered the meaning of the

term.    In Ten-Six Olive, Inc. v. Curby, 208 F.2d 117, 122 (8th

Cir. 1953), it is said that an “[a]lteration denotes a

substantial change.”    See also Zelinger v. Plisek, 426 P.2d 957,

959-60 (1967); Rosenblum v. Neisner Bros., Inc., 231 F.2d 322,

326 (7th Cir. 1956).    In Garland v. Titan West Associates, 543

N.Y.S.2d 56, 60 (N.Y.App.Div. 1989), the court stated that

“whether the improvements effectuated by plaintiffs constitute

alterations turns on whether they changed the nature and

character of the demised premises.”    And in Leong Won v. Snyder,

94 N.Y.S.2d 247, 249 (1949), the court defined the term as

applied to a building to mean “a substantial change therein

varying or changing the form or nature of such building.”




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     In short, for a change in a building to constitute an

alteration, the change must be substantial, not trifling.    It

must be one that alters the nature and character of the

building.

     We would agree with Select Management that, ordinarily, the

painting of the exterior of a building is merely cosmetic in

nature and not an alteration in the legal sense.   But this is

not an ordinary situation.   Here, the trial judge would have

needed to take only one look at the graphic before and after

photographs of the building to find that the change caused by

the painting was substantial, not trifling, resulting in a

change in the nature and character of the building.   What once

had the appearance of a stately stone building has been given

the mark of crass commercialism, which can only be erased with

the expenditure of a significant sum of money.

     That the effect of the alteration was substantial may be

demonstrated by reference to a rule applicable to landlord-

tenant cases.   A tenant who performs work on leased premises not

authorized by the lease is guilty of committing waste.    See

Roanoke Marble & Granite Co. v. Standard Gas & Oil Supply Co.,

155 Va. 249, 257, 154 S.E. 518, 521 (1930); see also Rosenblum,

231 F.2d at 325.   Here, the rental for the building in the year

the painting occurred was $2,925.00 per month.   According to the

estimate secured by Runnymede, it will cost Runnymede $18,676.00


                                 6
to restore the building to its original state, the equivalent of

more than six months’ rent, an amount which, by any measure,

demonstrates the substantial nature of the alteration of the

premises made by the tenant in this case without permission.

     The painting of the building, therefore, constituted an

alteration requiring the prior permission of Runnymede.   And,

under the circumstances of this case, because Select Management

did not seek permission prior to undertaking the painting, it is

in no position to claim that the permission was unreasonably

withheld.

     Finding no error in the proceedings below, we will affirm

the judgment of the trial court.

                                                          Affirmed.




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