CURRENT EXPANSION OF LANDLORD-TENANT LAW
BARBARA
K.
RUNGE
Table of 'Contents
Introduction
Page
..........
The Doctrine of Caveat Emptor.
• • • • •
1
'. . . .
2
.
.
The Doctrine of Constructive Eviction • .• '
5
Legislation-Housing Codes.
7
Receivership • .,
•
Rent Withholding
•
"
· .'
. ..
'• •
....
"
Implied warranty of Habi tabili ty '.
,
.
11 ,
• ." . : 15 ·
Effect of the Doctrine , on the Ghetto ' Resident.
Conclusion ••
....
"
"
.' . '
. ;'
. ':
. ...
- '::"'\"., ,
' it
'
10
24
. · '. . . ',. .
~
28
Current Expansi.on .of Landl.ord-Tenant Law
The h.ome is the basis .of many significant events
and s.ocial experiences which influence an individual's
character.
The ideal h.ome
sh.ould,
theref.ore," .,,'
proyide a
:'
,,<
. ", '"
restful haven fr.om the tensi.onand ' strain , of modern life
by ' .offering beauty, c.onvel'lience, s 'e curity" and priv'acy .
"
,
,
'
.I
1
'
.
When a h.ome d.oes n.ot , offer ':sucha " setting, but is a
s.ource .of irri tati.on and di,s q.omf6rt "the happiriess 'and
'
,
,
sUbsequent success of the entire ,family may be affected.
' This effect maybe manifested by:,' L
2.
marital instability; ,
' depri vati.on: .ofeducati.onal .opp.ortuni,tiesf.or the
children; and 3.
an inability t.o maintain rapp.ort with
a peer gr.oup.
While the h.ome envir.onment is' crucial, regrettably
many Americans exert ' li t tle c.ontr.ol .over this envir.onment.'
These Americans are residential tenants wh.o rent their ,
h.omes.
The residential tenant ' iisuallY' has little c.ontr.ol
.over the c.onditi.on of hisab.ode , and must rely .on the
landl.ord f.or 'necessary repairs; l , This ',is espe'cially
true because , a tenant '
~ ;,: ch.oice .ofr~!;;idences' is restricted ,
by ' a h.ousiIlg .. ~h.ortage., , This sh.ott.age; 'enable:slan~l.ords
to , imp.ose .:,a n'. "impressive ,;'i:lrray
: .of ~rllies :and ;restrictive
. ..'
~ "
2'
covenants on hapless tenants.
·I n our mobile society, a "
ten'a nt is often willing to' endure these ' oppressive . short- ·
term leases while awaiting a f .urther transfer.
Many Americans are lease victims and as our
. popUlation increases even :mo~'e :' will ' be', facing. a :simUar
plight.
And the rising cost
of . subUrban'
will
,
'
,.
. land
.
~
, further contribute to .the ,pe.r vasiveness o'f apartments '
as individuals seek less exp'.e nsive
·,dwEj!llings.\·
,
,'
, .
These tenants are usuillly interested in a safe and
sanitary shelter, aesthetic surroundings. and their legal .
obligations to the landlord.
~s
an increasing number of
Americans become renters of urb.an dwelling units, the
, established doctrines governing landiord-tenant 'disputes
are constantly being chalienged.
An appreciation of ' these
. established doctrines aids one in appreciating the'i r modern .
progeny.
The Doctrine of Caveat Emptor
A lease was traditionally , considered, a conveyance ,.
in land.
Courts which resolved lease controversies,
therefore, ' employed the rules governing real property
transactions.
The .doctrine of caveat emptor, was thus
applied at c0il1l!'0n law to a lease agreement,' on the ground
" ,'
that the lease was, a sale of. .the.i~~d:
' porcini this doctrine,
developed theruie :t\)at ala,ndiord:i.sno~J li<ililefor a
3,
;tenant I s discomfort or inju'r ies which result from the
defective condition' of the , premises '. 2
,But ' the valid assumpt;ion that ,i n a rural agrarian
:Society the ' lease primarily conveyed an interest in the
. land, must be reconsidered where the lease concerns an
urban apartment or house. " In fact, the value of the
:.leaseto the tenant. ' is .not the land,.. rather
most ,tenants.
..
,,'~.
.
'
.
, are , primaril,y interested , i 'n ' obtaining a reSidence when
they sign a lease.
Tile city dw~irer wl}'o' ,leas:e s' an upper ,'
'floor apartment, thus has . littlei interest in the land
be'l ow. 3 ,' So" today, when a: 'City 'd weiler ' 's eeksl. "shelter,"
..
.
, ",,~
he desires a well-known package of "goods and services ,. : ~'
This
package features: ,
,
,,
4 ',
,
adequate heat, light, and
veritilation; functional plumb,ing facilities; secure ,
windows and doors; proper ,sanitaidon, and adequate
:'!.
.
'maintenance.
"
'
This " idea that the tenant is buying a package of
,g oods and services rather than a conveyance of land has
evolve'd because:
,)
,tl)
the modern tenant is mobile , and does not care .
to take out time to repair his premisesT
(2)
the modern tenant is not a Jack-of-alltrades and often lacks the skill to make'
the , necessary repairs;
(3),
the, freedom ' of ' contract and . equality >of'
bargaining pQWer isalmostrionexistent '
"due"J:b the ; current',':'shortage. 6f housing;' .
'/
4
(4) ,
today's landlord is similar to a housing
merchant who places goods and services
on the market, rather "than offering
mQral~ .n isol.taQ laasQ cQnve~ance.
Acknowledging that certain old rules of property
law are inappropriate for ' t6day's transacti.ons , : pro'.
gressive courts , have employed
modern
rules of
,contract
.' "
....
, . .
"
,law in interpretinglease
(' :agre'e
ments. ; App.lip,,,'"
a tion 'of
.
.
.
' "'
,
.such modern doct'rines is' eSf!ential ~here , Fhl" " qO!'1ffiop '!'aw "
'no longer' reflects" contemporary community values and ;
ethics.
S
An increasingriumber of courts have therefore
imposed liability on the neglectful landlord.
Iinpos iti on'
of this liabiii ty results in decisions that' are more in
accord with the legitimate expectations of the parties .
It also aids in assuring that all landlords meet certain,
minimum standards and ,that a "slum" landlord is not able
to ' successfully
impose unco~scionable terms on indigent'
,
'
, tenants that. have no alternative housing choices. Pro-- :
ceeding piecemeal has, however, ,led , to conflicting
,
,
decisions. ' This confusion , is not. the r 'e sult of a
difference in policygoa,l s, but because ' of the i lingering ,
impact of caveat : emptor
,..., a '::doct;r'in~~
,w',:.
hose,
polici¢s are
. '
. ;.
t . " .'
.,,:. ' .. '
,
"
5,
rhe Doctrine of Cons'tructive 'Eviction
An ·early exception to the doctrine of caveat emptor
,w as established in the case of Dyettv. , Pendleton. 6
The
tenant leased a portion Qfthe landlord's house, unaware
that the landlord introduced prostitutes at the residence.
After learning of the business, the tenant and his family
moved off the premises. , The landlord filed suit for nonpayment of rent.
At trial, the defendant-tenant testified
that the noises ,i ncidental to the trade of prostitution
, kept his ' family from sleeping and as a consequence"they
were forced to move.
The appellate court, ruling in
favor of the defendant, since he had been constructively
,
,
'
evicted, stated:
Other acts of the landlord going to
diminish the enjoyment of the premises,
'besides an actual expulsion, will
",
exonerate (the tenant) from the payment of rent. 7
'
'
Throughout the ' initial stages of the doctrine of
constructi ve eviction, ' courts refused to, apply it except
in instances where the landlord had taken affirmative
actions to evict 'the tenant.
Gradually, however , courts
extended the doctrine to cover ' situations in which the
premises are not necessarily uninhabitable, but are
worthless, through the " f aul t ,of the l~ndlord ,for the
particular purposes : for which they , :are" rented; 8
In the
case ' of Grinnell' 'aros. ' v.' Asiuliewicz ," :the ~ tenant music
"."
','
,".
6
company sought an injunction which woul,d not allow :'the
landlord to rent a po·r tion of the premises f 'o r use as a
meat market. 9
The court granted the injunction and
. related:
Th e r e goes with every rental of
premises the right of beneficial
enjoyment by the tenant for the
purpose for which the premises are
rented, at least to the extent
disclosed to the lessor · at the
making of the lease. 10
To determine t he inadequacies of this doctrine,
one must focus upon the . requireme.nts and remedies of
const'ructive eviction.
'T he doctrine requires . the tenant
·to abandon the premises within a r easonable time after
giving notice that the premises are uninhabitable or
unf it f or his purposes. ll
This is based on the proposition
that a " tenant cannot claim uninhabitability and at the
same time continue to inhabit.,,12
The major problem with
this cause of action 'is that the tenant could be held
liable for breach of the rental agreement in the case
that he cannot establish sufficient grounds for the
,constructive eviction.
Also , there is always the
poss ibi l ity that .the tenant failed to, move out within
a reasonable time and therefore, has waived the defects
of the dwelling.
Only ' a minority ,o f the courts, have
allowed partial constructive eviction which allows the
. 1n
. at 1 east · pa·r t
tenant to rema1n
0
f
t
h e prem1ses
.
. 13
7
The tenant is entitled to recover damages for the
lessor's breach of covenant.
When the landlord's breach
has resulted in .the tenant's . abandonment of the premises, .
the tenant is capable of recovering damages, in addition
to defending any action for nonpayment of rent.
The view that
a
lease is essentially a contractual
relationship with an implied warranty of habitability
and fitness i 's more realistic and consistent to contemporary life.
In addition, the remedies available for
'the tenant include a range of alternatives:
(2) reformation,
(1) damages,'
(3) rescis.ion. 14
To the lower-class tenant, the doctrine of constructive eviction affords little relief.
The indigent .
is unlikely to be aware of his alleged rights and even
. less likely to desert the inadequate facilities when he '
realizes the risks involved.
His reason might well be:
Why leave one substandard unit for another?
Consequently,
.the doctrine is normally employed by the rich, notwithstanding the fact that the lower or middle-class
tenant is the one who is in particular need of it .
Legislation--Housing Codes
Most states and municipalities have adopted housing
codes, which force ,property owners ,to "comply with minimum
housing standards • . '. Usually. thes:e . requirements cover .
,8
merely the, basic necessities, i.e., adequate lighting,
,ventilati.on, and plumbing.
In addj:tion, some ' codes
provide for the ' control of vermin and overcrowding. lS
Concededly, the codes have prompted improvements in
much of ' lower-:class American housing.'
This is true
mainly because nonenforcement of these minimum require- ,
ments can result in fines or prison sentences for the"
unwilling tenement ,owner.l'G , Yet, this form of ' governmental regulation provides no express remedy for the
hapless tenant.
Too often the "slum landlord" will
consciously neglect to make the necessary repairs or im'"
provements, inere:l y because he realizes that the ' lower-'
'class ,tenants are ignorant of their rights and therefore
sile~tly
subject themselves to substandard habitations.
'Also, the ';slum landlord" is aware of the fact that
many local housing agencies are overworked or the local
authorities look upon the tenants' plight with apathy.
President Johnson's Riot Commission summarized' 't he "
inadequacies of the housing codes:
Thousands of landlords in disadvantaged.,
neighborhoods openly violate building '
codes with impunity, thereby providing
a constant demonstration of flagrant "
discrimination by legal authorities.
A high ,proportion of residential and
other structures ' contain numerous
violations of, building ,' a;nd: hous,ing '
, codes. , ~efusal Jto ' reniedy" 't liese / ,violations , is a criminal offense" one ,
' which ' call' ; haVi!,~" s~;-}ous: :ef.le¢tE!~'upon:
the victims living in these structures.
Yet in most cities, few building code
violations in these areas are ever
corrected, even when te'nants' complain
direotly to municipal building depart~ ,
ments.
There are economic reasons why these
codes are not rigorously enforced.
Bringing many old structures up to code
standards and maintaining them at that
, level often would require owners to
raise rents far above the ability of
local residents to pay.
In New York
City ', rigorou!'i code enforcement has
'already caused owners to board up and
abandon over 2,500 buildings rather :
than incur the expense of repairing
them. Nevertheless, open violation
of codes is a constant source of
distress to low-income tenants and
creates serious hazards to health
,and safety in disadvantaged neighbor' hoods. 17
The fact that over 2,500 tenement buildings were
abandoned in New York City indicates the vastness of the
problem.
But what future does this predicate for the '
indigent tenant? ' The closing of these tenel1lent halls
only increases the extreme hpusing shortages which
threaten most major American cities.
Perhaps society
has ridden itself of many inadequate housing facilities,
but where does this place the tenant?
He is nowtrau-
mati cally forced onto 'the street in search of; another low
rental dwelling ..
If this cannot immediately , be , found
(and of course, rarely , is ,the requisit-e housing automati cally found) / ' the iridig'e nt 'tenant 'is "forced to
impose ~is f~~lY ' ~pon , relatbte~r,il!ld , friertds'.
To, say '
,10
the least, this ,produces m()re overcrowding and more
pOssibilities' of, 'unsanitary , quar1;e'rs.
Many sta·te
'legislatures ,acknowledging these problems, have experimented with 'innovative ' methods of 'code enforcement.
Some s'tates such ,as Arkansas, Illinois, Florida"
and GeoFgia,
permit the tenant to:
make'the necessary
.,
"
'repairs and deduct the incurred expense from his rental·.
,
18
payment.
This is . usually applicabie only after the
landlord has breached an express ' promise to repair.
Most statutes, such as one enacted in Montana, disallow
19
expenditures": greater than one , month's rent.
The
fallacy is clear:
.if the needed repairs are great, the '
amount owed by the tenant for one month's . rent will
:not be sufficien't ' to .cover the subsequent repair . bills,.
In addition, few ~enant~ possessthetemer,i ty to ' take
such ,affirmative action as self-help, which is requir~d .
.
by these "repair.. and ' deduct" laws.
Receivership
New York, in 1967, enacted a statute which allows
the City of New , York to make essential , repairs in
'situations where 'the ' landlord :has refused to ,comply with
.
, ' , 20
the tenant~s requests, .
The expense fox: these improve:- '
mentsare··:.. recover~·d
.. c;tirectly'
' frOm
'..
"'
.
,
.
the
' tenant's: rents
. .
11
.In theory, · the practice offers one of the best available
methods to improve . ghetto·. conditions.
In practice,
however, the municipalities which implement this method
must operate "in the red" until they are reimbursed.
Recovery is a slow process. . Chances are , the local budget·
cannot effectively operate with this system since the
initial c~pital needed for extensive repairs is un. available.
This weakness has prevented successful. ·im-
plementation ,ofthis plan by most municipalities.
Rent Withholding
Rent withholding has also been suggested as a means
of compelling the landlorq. ·,to make satisf,actory repairs • .
New York is one of the · few;t~tes to have enacted a statu't e
of this type .~ 21
, .
This has proved ' t6 : be an effective
technique because the landlord stands to lose the source
of his profits--monthly or weekly rental payments.
If
enough tenants utilized this technique for a consecutive
period of time, the landlord would be forced to take
affirmative action, i.e., make the amendments himself or
employ skilled workerS for the repair job.
This . procedure is especially practical since the
indigent and unskilled tenant, need only withhold
'the
.
'
"
rental payments •. ' ,T he advantage is' 'o bvious:
the tenant ·
is not forced to :abandon.
.. .
. ' :the, premises,
.
. .. file '' ·.s uit ·"' , make
12 ,
the repairs himself, or employ the services of skilled '
profes~ionals.
The tenant's demands will be felt in the
,landlord's pocketbook notwithstanding the fact that his
ears" are de'af to the re~uests for' improvements.
Withholding rent as a method for obtaining repair ,
work has also been upheld by case law in instances when
the tenant has obtained the repair work.
In Mai'n e v.
' Ireland, the plaintiff-landlord brought action to dispOssess the tenant ,f 'o r failure to pay past rental billS. 22 ,
The landlord and tenant had entered into a oneyear apartment lease .
The lease incorporated a covenant
' of quiet enjoyment but did not "include a specific covenant
.,
for repair work.
,
Within three months after leasing the
,
' apartment, the defendant discovered that the toilet was
cracked and water was leaking onto the bathroom floor.
After making repeated attempts to inform the landlord
of this situation, the defendant hired and paid a
registered plumber to repair the toilet.
The defendant
offset the cost of this repair against 'the next montl).' s
rent '. ,
In handing dow ll a judgment favorable to the tenant,
the Supreme Court ' 6fNew . Je ;sey , :, h~ld "that :eCIui table '. as
well as legal defens'es , 'asseiting;'
payme-nt
or absolution '
.
"
.
from payment "'in
,to ,
.. whole
. '. ' or ,, :in p:a:t't"
. . :'are,;'available
,
'
tenants :who s,tand 'i 'n" the "sho,,',., 'n f' tliis defendant .
The'
13
court felt that in ' dispossession acti,o ns t ,such as this /
,the court must consider all ,the circumstances of the '
::case:, , rather than 'locking only to the four corners ,of
the .lease agreement.
Finding total justificationon'" the:
de, fendari~' s part, the court declared:
, If the landlord fails to make repairs
and replacements of vital facilities
necessary to maintain the premises in
li'vable condition fora period of time
adequate to accomplish such repair and
' replacements after notice, the tenant '
may cause sameto ,' be done and deduct
the cost thereof from ,future ' rents. 2 3 '
Landlords , haturally, argue ,that 'tenants ' should not
be ' granted 't his, degree of control over the, premises and
the rents .
Consequently, this has proved to be ',one ' of
,
,
the more controversial responses to the inadeqUacies!
of. hO\lsi'ng codes.
None, h9~ever i " can :deny it,s ' ef-
'fecti veness.
,
Onewould , imagine thif;!:' t~e '" ordina'J;'y : landlord would
. take more negative action in' r~~ponse, to any of the #love
mentioned situations.
Retaliation by means ' ofevic~ion \
', would probably be', the landlord's ' first move.
However,
,courts now ' uphold the theory that ',a landlord cannot
evict a tenant or his family me:r::ely in retaliation.
In Edwards
v.H~ib,th~landlord br~ughtaction
: possession :,0£
on
for
" ~ dwel;ling ho~sewhich' ~as ; b'~i~g rented "
~a ; lIIOn1:.htt()~m9':lth , l)aSi~ ; 2~\::Th~O~~,t;~1¢t , O~ ~~Plumbia
'
14
court of Appeals held that, while the landlord might
,
evict for any legal reason or for no reason at all, he
.
.
was not free to evict the tenant in retaliation for ·
tenant's ' reports of housing code violations ' to the
; ...
local authorities.
This appellate .court declared:
In trying to effect the will of
Congress and as a court of equity,
we have the responsibility to
consider the social context in
which our decisions will have
operational effect.
In light of
the appalling ' condition. and shor1;.-i
. age of housing . ' . • the , expense ;
of moving, the inequality of
bargaining power between : tenant
and landlord, and the social and
economic importance of as'suring '
at least minimum standards in
housing conditions, ' we do 'not
hesitate to declare that re,taliatory conviction cannot be
tolerated.
It can be no doubt
that the slum dweller, even though
his home be marred by housing code
violations, will pause long before
he complains of them if he fears
eviction as a consequence. 25
For an eviction to be upheld under these circumstances;
would be to punish . the tenant for making a complaint which
he or she has a constitutional r 'i ght to make.
In the
future, if allowed, this would act as a warning to other
hapless tenants that they dare not be so bold.
The
negative impact of
allowing this retaliatory eVic,
.
.. t ion
wou;Ld be grave.
In explaining this, :the . cou.rt··
; stqted:
" , : .,
. .:
.
"
The ' notion that . the effectiveness
of. '. remedial
will . be'
.. ,: '. legislation
.
"
'
.
-,
15 .
inhibited if those reporting
violations of it can legally be
intimidated, is so fundamental
that a presumption against the
. legali ty of such can be inferred
as inherent in the legislation
even if it is not expressed in
, the
statute itself. 26
.
,.
:,
. Courts, in upholding the rights of the tenant to report ' .
. violations, · file suit, . make repalrs, and/or withholding
on
. rents, base. thEdrdecisions
lord warrants that the
'.
'.f it
.'
dwe+l~ng. ,
.
.
and . suitab.lecondition~
,.-referred
.
the idea that the land;';
~
hE!: provides, is 'in , a
'
"
'This con'cept has been
to as .thewarrantY · 'of :habi~abiiity.
. . .
'.
.
'
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Implied Warranty ·o fHabitability
Progressive courts which favor the tenant have
,
,relied heavil:y on the concept of an implied warranty
between the contracting parties.
The adoption of this
'particular device was facilitated by the peculiar
and uncertain character of warranty,
a hybrid
born of
the illicit intercourse of tort and contract.
The
modern . action for breach of ·warranty is considered one
·of the notable eXamples of legalmiscegination.
"Origi-:.
I).ally, soun9-ing . in . tort., yet· ·ari~ing 9ut· of the warrantdr',s ·
.consent to be bounl:'l., ; itlate'r ceased h~cessarily to be
.c onsensual, and at:., tile same time ' :came. to lie mainly in
. .
27
contract.:" .
The concept': of . an implied \farrantY ,a s to the s.ale
of , goods has.. be~n-: c~ified' and" enacfed" into:,th'e Uriiform
1,6 '
'
Cominercial¢odes of most, states.
.. '
"
Based upon contract '
claw, courts' have' "recognized that :an industrialized
society, the buyer of goods ands'e rvices is forced to
rely upon the skill and integrity of the manufact'urer
or , supplier to assure that the ' goods and services are of
f;atisfactory quality.
In order to protect the legitimate '
needs of the buyer, courts now hold that the seller
must place on the 'market go.ods and services of adequate
quality.
This means that even if there is no contractual'
,
agreeinent betweenth~ seller' and ' the buyer, the merchant ,
,w ill 'be, held to
warrantth"~~ ~ hilfi
goO-de ;are fit . for : the '
ordinary ,purposes for which ' 'they are used and 'are ' of ,
satisfactory quality within':"the'
part'i cutarcustom'
or:.:.;
,
'. .
\
trade usage.
Moreover, i f
1;1:Ie.,,supplj,e,r has bee.n,
PUt " on '
notice that , the ,' goods are to be used fora specific"
J;>urpose, he will be held to ,warrant the" goods as fit for ,
that particular purpose.
These implied warranties of quality, nevertheless ,
have not been limited to cases i;nvolving sales.
This is
, true, e,v en' though ,Article II. of the Uniform Commercial
, Code deals with the ' sale of goods and most sales warranty
or products liability: : cases alsodeal~ with the sale of
;
goods.
Recent1.y(asIiotedi~ " thee, fo~l6Wirig 'cases,
' Article II warranti:es
::. .have
: be$n
'helii ",t:o
,: ~pply ", in nonf;ale
..
, - .. .
.. " . .
,. :., .. '
'
:,sit,uations •.:'
",
~
. '
.~,
17
A leading case in this area lSCi'ntrone' V. Heytz
Truck lieasiri:gand Rent'a'l Se'r Vi'ce;28
The court there
held Hertz 'liiwle for injuries sustained in an accident
~ causedby , defective
brakes on a rental truck.
reason to limit warran:tyliability
•
)
;
.
.
Finding no,
a , sale~ '; transaction,
,ItO
'
L
}
. the court ,held that leasing motor vehicles to the public
icarries with i t an implied/ ~arra.nty - of fitness, for
.
operation on the public
.
.'
.h,igI;w~ys."
:"
" .
E~tensi(;m o.~ .
,s trict
liability to the lessor was further justified on the
ground that Hertz was in a , better position than the
,iessee to !tnow' and "control the hazardous condition of '
the: leased chattel and to ,distribute the resulting losses:'
Following the theories, ' enunciated in Her.tz, 'the
SupretneCourt of California, in Price v. Shell Oil Co.;
allowed the plaintiff to recover for personal injuries
which he sustained due to a broken ladder which had been
,
'
leased from the defendant.
29
The court held ,that ' the
contractual agreement by the lessor carried with it an
implied warranty ,
of
fitness that. the ' lessor had exercised'
.'reasonable : care to. ascertain that the chattel was safe
and suitable for its , intended purpose.
The court further,'
;'~easonedthats,trict liability shouldl.'e imposed upon
'"
the lessor t;oinsure . that' :the ' cos,ts
0.;1; injuries
.'resulting
,
.
.
.
.
~
';I;rom de;l;ective ' products , 'are' not borne' by the ' inj'u red
pel;'sonwh~ wa:~ , ~ower~~ss : t:o, pr<?~Tc,t :'h'imSeH'~ ,
18
In another personal injury case, Schipper v.
Leavi.tt& Sons r Inc., a small child was severely scalded ·
~O
by a defective water faucet.
· The New Jersey court
declined' to apply the doctrine of caveat emptor, ' but;.
rather invoked strict liability to grant recovery. ,
The , cour.t pointed out that:
. The law should be based on current
concepts of what is right and just
. and the judiciary should be alert
to the never-ending need for keeping
its common .law principles abreast .of
the times. Ancient distinctions
which make no sense in today's
society and tend to discredit the
law should be readily rejected. 3l
This result is ' predicated upon . the modern policies .'
which impose landlord liability.
By analogy, these
policy considerations exist in modern apartment lease · '
agreements, Le., the landlord is in a better position
to know the condition of the apartment and the quality
' of its furnishings and fixtures.
He cap also control '
. and repair any defects, especiallY 'where the hazard
would not ordinarily be expected. ' ;
T~~ '
landlord is also
;
'.
in a better financial positiOn to bear any losses or
. injuri es occurring because' of 'a : h.a zardous.' coridition
on the premises.
The ' above mentioned .cases i ndic,ate a willingness
to apply imJ;>lied .warranty . concept·s to rental agreements.
Apparently ,., no · "?lid",reii,s on ' bars , tl:le . ~pPlicati~nof
19
implied warranty, or strict liabiiity concepts to ' apartment
leases if the application is pased upon the 'theory that
' a lease is a "sale of habitable living space.,,32
These
cases also recognized the many similarities between a
sale agreement and a lease and, as a consequence, applied
the doctrine of caveat emptor to both.
But ata time
when the doctrine has been virtually swept away in the
sales area; , it is difficulf l to justify: i 't s continuance;
in the laws governing the landlord-tenant relationship.
Since the doctrine of caveat empt'o r ' did hot offe'r
sufficient protection to tenants.
"cour,t s began ' ',t o' evolve,
"
,
it into and merge it with an implied warranty of habitability.
As early as 1843, an English court recognized ' in '
Smith v. Marrable the harshness of the caveat emptor
doctrine and found an implied warranty of habitability
in a short-,t erm lease agreement . 33
After one week' s
residency in his furnished house, the tenant in the "
"
Smi th case was forced to move due to the infestations'
of pests in the house.
The court allowed the tenant ,to
recover for rent which he had already paid f.or the
remainder of the term.
In explaining its decision,
the court stated: '
A mim who lets, a ready-furnished ::
house ' surely does sounder 'the "
implied condition ' or obligati'o n .' ,
that 't he house is ' ,in' ,a ' fit state
to ; b~ ,J ,n habi ted;'34
20
This implied habi
. tabili ty. exception has. ·been
. .
~
~
followed in the United' S·t ate·s-:' '- . Bu~· 'unti'l ·i·'e'c ent1Y, its
applicatio~J;as been .up~eld --,o nl,y ;i f,'; ."the :~?llo~ii,lg': ' facts
are · shown:
. (1)
a'· furnished dwelling. is involved ,'
(2)
the lease is for a short term, and
(3)
a form of pest infestation made the
dwelling intolerable for human
habitati6n. 35
.
An example of the limit placed on the doctrine of
implied habitability is found in the case of Ingalls v.
Hobbs. 36 . In that . suit, the landlord attempted to recover
$500 for the use of a furnished summer home.
After
obtaining possession, the tenant found the dwelling was
infested with bugs and consequently unfit for habi.t ation.
Applying the doctrine of implied habitability, the
Massachusetts Supreme . Court decided that the major
portion of the. rental payment was for the right to·
immediate possession without the expense of preparation.
Stressing the ability of a tenant to enjoy leased premises
without expensive preparation, the court stated:
It is very difficult , and often impossible,
for one to determine on inspection whether
the house and its appointments. are fit '
for the use for which they are i~nediately
wanted, and the doctrine of caveat .emptor,
which is ordinarily applicable to a lessee
of real estate·, would often work injustice
if applied to cases of the .kind. It would
be unreas,o nable to hold · under suchcir'""'
cums,tancef< ~ha~ ,the' landloi:(,doesnot '
21
impli~dlyagree
that what he is 'letting
' -is a house : suitable for occupation in
'its condition ,at 'the 't ime'. 37
Not
~nti:l ,
'
Hacke'r V. Ni't schke, did a court establish'
.! "
the ' principle, that 'an implied warranty applies to defects'
which are not of such great cOnsequence as to render
the entire premises unusable. 38
In that case,,' the
tenant had 'rented a ' furnished beach cottage for a short '
Within this limited peri~d of time,
,term of one month.
the plaintiff-tenant was seriously injuried during an ,
attempt to use a 'ladder in ,the dwelling place.
In s,pitt:; .'
of the fact that the entire dwelling was , not infested
with insects nor deemed unsuitable for ' habitation, the '
court decided 'that an implied agreement is implicit
within the leasing of a furnished home for immediate
'occupancy.
This agreement,' warrqnts :t-~a:t the ' house '.',a rid
its furnishings are suitable, and fit ,f 'o ruse in their
prOper purpose.
Subsequent to the Hacker case I , thg
, Supre~e
Court
of, Massachusetts reinforced 'its prior holding in the case
"
'
of Ackarey v. Carbonaro.'
39
'
The facts of this case reveal
,
that the ,-tenant' s minqr daughter was injured ' after falling
through ade£ectivepiazza railing o{' the :rented summer '
dwelling. ' The de"ferlq.ant, owr~~,',oftli~abode , . had allegedly '
breacJ1ecf hi~ duty to' inspect the :premi$es ' for , hidderi
defects: and make. ;anY :.neCeljls?i"y "repairs 'before '.le,a sing
22
the dwelling;
,The
def~ndanttesti,fied th~t
,the piazza
'tailing seemed to. be" in "geed cenditi'e n" , ,at the time ef
,the , letting.
Hewever, additienal: evidenceindicate:d
,
tha,t the weed railing
'W;l$
ret ten en 'beth ends and
therefere ' unable to. withstand even ',' the , relatively slight ,
weight 'ef the ' small child.
The ceurt ' again, applying
the dectrine ef implied habitability, e~lained ' that
, the tenant ' pay's for the 'eppertunityte enjey the abede '
wi theut delay and wi theut the expense ef pr~pad.ng the '
::dwelling fer use. , Pre.paratien ef: a leased cettage ' is
",'a , matter' wi thin' 't he , reach ef the landlerd since ' he is
in a 'b etterpesitien to. disceverthe d~fects, cer:t;'ect ,
thelli, and make 'necessary previsiens to. prevent pessible:,
inju:i:ies ' due to. the hazardeus cendi tiens. 40
The'se 'two. cases are ef maje,r . impertance be'c ause
they net enlyreinferced the ' applicatien cif ' this
,' dectrine, but extended its reach to. suits : which invelve :'
persenalinjuries resulting frem structural defects ef
"the building.
,' ,
The prespective lessee IIheuld net be
.'.
:
.
.
.
: expected to knew ef cencealed defects" fer tee eften
,
"
, the tenant is unable :,te make ,a reasenable inspectien ef
,the premises, befere ' agreeing -to. tent ,the building.
In
'f act,freqlIEmt:ly
th~ :ti:der
lessee,."has , net yet rnove,d eut'
.
..,
. . .
'.
ef ; thed~elling
~,;the" prespe¢,.t iveten,
a nts igns
"
.... , befere
.
"' ...' .
'."
' .
"
', "
the . 'lease.','
,', •...Obvi6U$lY,
:tl¢ugh:, ·:;the;,'fenail.~
, " i ·' . , "
.. . ... _ . ",.
.. " : ' ,. , :," '; : :' ..'", ' ," ,
t_. . ":: ,.' , is'·
': . implici
. ' tly
~
~:
23
,
"
or expressly barg~ining forimmediatel?ossesSion of the ,'
realty in asuitabiei conditt,o n. , ' nIt :is fair to presume
:, that ,no incUvidual ,would voluntarily , chOose to live in
a dwelling tha,t had become unsafe for human
habitatio~>4i
In ' the , recent case of Horton v. Marston, the
"Sul?remeCourt ' of Mass~chusetts ~gain broadened the
,
, ,
42
al?P'l ication of this doctrine',
', The lessee brought
action against the lessor to recover for injuries which ,'
sh~ had received when the stove in the cottage eXl?loded,
in:: holding', the lessor liable, the court declared: "
)0,:
': .• ',:.
•
. :
.
....../. '.,
The fact that the term of lease of
the furnished summer cottage was
nine months was not such as to
place the risk of concealed defects
ori le,s see . 43
,
It is , worthy to note that the injury did not 'o ccur '
until the ' ninth month of occupancy .
Thus, it is not
neces,sary that the ' le~se be a short-termle'a se.
Hawaii is another state which has
: warranty ofhabi tabili ty doctrine.
~dopted
,In Lemle v.
the
Breeden, ~
: the tenant was , forced to ' vacate the premises due to the'
,
, 44
'
presence of r~ts.
After recogI}izing the historical "
,
le~singtransactions,
: changes in
,the court allowed the
' lessee to rescind the contr~ctand' recover the, amount
"paid upon, eJtElcution '.of the , -lease" , Taking -into account
' contemporary
,' housing
: rea,li
Hes -~ , '~hec:i()urt;:
'explained
"
.'
,
.
. -, .' .,".
. ''''
.
-.
.
,'
.
., , ".
'"
~
24 '
from which ,the warranty, of habitability, and fitn'e ss is '
,a "just and necess'ary implication. ,,45
These 'cases seem to indicate that in ,the future,
the prerequisite of a "furnished'" dwelling will also
be removed.
Realities of contemporary life show the
' need for progress ', in the , field .' o f landlord-tenant law.
The common law doctrines, with their 'major emphasis on ,
the land itself, are no longer applicable since they
afford little relief to the American masses who rent
their residences. '
Archaic land doctrines such as
caveat emptor are ' especially detrimental to those
citizens who 'need home improvements the most--the slum
tenant.
',Effect of the Doctrine ' on' the Ghetto ' ReSl'dent
The plac'e in 'which an individual
lives is a symbol of his stature",
an extension df his personality .. '
a part of his identity.46
Living in substandard conditions is an ineffective
,generator of human dignity.
Personal pride is an essential
,"
.
prerequisite to an individual's ability" to maintain self-,
respect.
When the ghettO, tenant comes home to a shabby
and cramped a.pa.rtment,: ' he e 'a sily becomes ,"discouraged.
.
;
.
'.
Bitte'rness ' and miscontent ',a re th:e .. ,natl1ral:' re,s ul ts ' of "
:this , typ~ "of ,surrc:lUnding,.
.
'.
l
"
. ..... !.
. ..... ~
.
25 "
This ' disgust :.1.s .. confined not :only to the .s ub,standard c'o mnnmiti:es, but permeate's intoeve·r y corner
ot the American social: s·trata,' }!r,om those 'in the lower
soc~6-economicgroup
to the upper ·echelon.
"Slunis '
. and blight are· a deadly menace to the families . ~xposed'
They are, by the s ame ~t.oken, . a menace :
:communi ties and to . our ' nation ••• 4 7
to them.
to
our '.
The doctrine of ' warranty ofhabitabilf.ty is of
, ,
major importance when applied to decaying tenements.
The ghetto resident, by ·.maintaining a cause of action
under this doctrine could .force the slum landlord to
the'
. . conditions
.improve
of. ' the apartment in question.
.
:rJ.lis .wouldnot only · aid .t hetenant, but 'could alleviatE;'
lI)a.ny
",
soci~!.l ~
.
frustrations, such as juvenile delinquency ,
:'alcoholism, ·and . racial tensions.
The : significance of a sound and healthy family
life in our .society has been emphasized by most 'psychcir'o_i
'gists and sociologists.
The combination of family
'conflict and poor housing is a difficult matter for any .
family to confront • . lnadequate housing has a decidedly:
.
,
.
negative influence on the family . structure
and ·sub.
.sequently, · on . the personality.
development of the . members
..
' .'
~
"
. of the famHygroup ·. · . Substandard.' stirr.bundings . threaten .
.
the
"
:' ., ' .
:
'
.' ' . ' .. "
: '\ .
heB:lthy' n¥rtur~ : Q,£
.
.
",
'
,
..
"
...
.
,'
.
'.
."
thechil,d'.spersonality. ·· The
.
..
\
~ome is. a}?~si'p: p"a'rt ~ of:' tl};i!' ~~~itpt9P.:I,r@: . Ql1ilj:1' .,i-rho .:·I.eari\s .'
26
their modes of · eXpression, mature
· 'attitudes·,
res pons i .- .
.
.
",
.biiity, . co-operati:on,..and confo·rmity. ~
For the wage
earner, the home ·is an· indicia of his s'u ccess, his
.. purpose and a haven from daily frustrations •
To the.
wife and mother, . the home is the physical manifestation ..
of .·her household and artistic abilities. . The home is
a reflection of the family's unified work effort.·
Poor .·
living conditions negatively affect this family unity .
by producing insecurity. and disharmony ~
How can parents ·provide. sympathy and understand~ng
while their ·own needs are inadequately met?
Is · it·
possible for a marriage to be s ·u ccessful when the
parents cannot eve·n be alone together?
The husband
.who . works daily at a fatiguing job derives little
:pleasure from family life when he·· returns home to a .
.single room which houses ·several active children and
'a · frustrated wife.
This overcrowded home not only ·fails . to meet basic:::·
security needs, but also produces damage ·to .the family;
· The normal child's.> jeal,ousies remain unsettled. · The
child may be · forced into. .the stree't in order to rid
"him from undeJ;" his parent,s feet.
. As , a means of escape,
. the parent 'may be '.led · to the : bars/,and /diVes'. ' 'rhe: resui t ,
.
.
'
.
'.
".'
~
is ' maritcfl · i~~trojiH~y, · d~iiilvatiorC,of
- .
.
'
.
. .
.
~
.
. .. .
",
,
.
ilE\'arni~cloppor:-
.'
. 'tuni ties .; fOr ,' the!, :phil~ren, '~>and " ah;" ,ina:bi'li f.j tb" cb~opeiate .
,
..
with ' others;(
.
,
". ' .
-: . "
.',
..
'
.
,"
, .
.
.27
The self-help capacity of this low-income tenant
is limited.
The landlo'rds themse-.!ves' 'are 'sometimes
elderly and uneducate:d.
The maJority of the 'land-
lords lack an appropriate aspiration level to improve
the conditions for their tenants.
The laws of our
society must progress so as to ,make it more profitable ,
for the landlord to keep his dwellings in a habitable
condition than to allow them to deteriorate into
chambers of human destruction., ,It. is" , incredible
t.o
.
realize that despite m'a n' s unprecedented prc:,gress in
industry, e~ucation and the sci:e rices" , the simple;
refuge affording privacy and protection against the
1.
...
~.'
elements is still beyond t he' reach' of many memb'e rs of
48
the human race.
,,,> •
,
.
,
.
The end to t he rising growth of apartment, living
is not in sight.
Urbanization is now accepted as a
:way of life for most , Americans.
The growing city , with
' all i t s faults, is the crucible in which man ' s desti ny
will be determined.
The ghetto and its obnoxious
condi t ions ,will probably always be with us .
Yet , as
despicable a place as the ghe t to, is I for many it is
.
' .
the only anchor that the struggling inhabi tant
~as
to
hang on to ' while, his "search for ' self,- ;-e:s pect 'continues.
For decades, ' American' landlords have been urged in vain
to take ' sQme
action :,to-. .
impi:ove
,',liV:i~g
, conditions over
...,.....
'
,'.
28
which they have control.
It is time for. the judiciary
to, assume the burden' of affording the necessary impetus
for this movemen'
, t .
'" large ei" tep will have been taken
when the majority of American courts adopt the doctrine
of warranty of, habitability, thus providing the ghetto
resident' with the means to force slumlords ,to' comply with'
'
'at ,l¢ast ., the .minimum
', housing standards.
,
Conclus'ion
I t is true that an i ncreasing number of courts
have imposed liability upon the neglectful landlord.
However, the causes of action based on negligence ,
constructive eviction , and violations of housing codes
"
. are inadequate.
There is no single panacea which will
, substantially improve · the maintenance of rental units
' or induce owners to repair and renovate their buildings. ,
Nevertheless , the effect of litigation based on implied
'warranty of inhabitability in tenant lawsuits would be ,
' considerable since it would require a landlord to take
. affirmative action t o improve his' rental property 'or
suffer a judgment agains t him i f the property fai l s to
meet habitable standards.
This
remedy
for the
,
. added
.
.
'
,
' tenant also has broader standards' that ' 'the l andl'ord
.
:
•
, .
,
must meet, a standard which
'
.
•..•
" ~
.'
''-
, is " not : bas~p. \
i
.
.
on .. black l etter
law as a duty. ofc:are
' to a'· particuiar, class
', but a
.
.
standard based on minimum, requitements 'f Qr ', hilmaIi" dignity • .
29
Courts in .the future must be more willing to
apply the doctrine of implied warranty .o f habitability.
Theevolut'ion of this . doctrine has been s,low.
'.'
Yet"tJ:le
\:
policy factors behind it are realistic and mus.t be '
re'cogni zed:
(1) '
the lessor is in a better position to
: know of a possible or probable defect1
'(2), . similCirly, the lessor ' is in a better
position to control'; 'repair:, ,or -,r.eplace
' such defects;
'.
(3)
','
' the tenant-lessee, contrarily, is unaware
of the hazards and is not likely to dis- '
. cover them in time to take self-protective
measures; and
' (4)
the lessor is in a better position to
distribute the losses which can be treated '
as an operational expense or protected by
. insurance coverage.
For these reasons, it
"urged .. that, evolution of
, , "is,
.
The" c~urtEi .must acknowledge "
this doctrine be hastened.
their duty to discard of corn'rnon
"law prijlc,i.p1es
which
.
' .
,
have. lost theil;'me,a ning in modern society. Progressive
'
.
.
-
. "
.
{
\
-
, ,"
.
-
",
"
'
:
.,
courts
must recognize ,the
great
' need .t()o.j:il:izethe
.
'.
'
...."
...
" ,
.'
contemporary and realisticdoctrine ;of 'implied wa'rranty
of
, habitability.
.
,
',-
Footnote's
16 Will. L.J. 581 l1971}.
k
'
'2 Kel 1 ey v. ParVl.ew
Apartments.•.. .215 Or; 198,
., 330 P.2d 1057 (1958). '
3Javins v. First Natiori'a'l 'Rea1:t'
' F .• 2 d 1 0':::;7~1"'"'::;(~D=-.'::::c':'.':"';'CT-ir~
•.::'1~9"'7:;;0i<T':':
..=::.:.....:.::=::.=::.::.1......:==
.
.
"
',
'
}.~ 428' · '
,
4NATIONAL COMMISS ~ONON'>URB./\N \ PROBLEMS ;:' Bliiidinq
<The .American City (1968).
5
. i
.
J. : . ; :" (~. ~ .:
Whetzel V •. Jess Fisher Mgti · Co';~ ~ · 282F.2d ' \ 943 ;
(D.C. Cir.1960).
."
'
r
I
\ ' "
' .
\
6Dyett v. Pendleton, B COW. :. 727 , (N.Y, 1 826,>,p .
7
Id.
.
""
8comment, Indigent Tenants, · 1968 ~ash.U.L.Q.
461 (1968).,
9Grinnell Bros. v. Asiuliewicz, 241 ' Mi~h : lBG,
216 N.W. 388 (1927).
10
.
rd., at 188.
11
'. .
R. Powell, The Law of Real , Property § 22SL-3J,
at 239 (Rolon ed. 1967).
12Two Rector Street Corp • . v • .Birn, 226 App. :D iv.
73, 234 N.Y.S.409 (1929). ·
13Barash V. Penn. Terminal · Real Estate Cor
31 App. Dl.v • d 342, 298 , N.Y.S.2d 153 . 19691 ~ ':
0)
"
.. 14Lemle v : Breeden,'.51 H.o 426 , 462.: p.2d , 470 , U9,691
15Indige~~. Jre~~nt~,~' $ul?'~a, not~:'~ ~
16
. . . « .~ '.,.", : ..'~ ; ,:>
>: .', ": . "', '"
69 Harv
.
;·L.,
.
Rev.
:'
1115,\"
Q956}".,
, . _ . . '. . .".
-,".' ." ..
.
. '/ _: '
'·I' r.,
~
<"
• -
~ A'
.
: .•
'. ' ;'
31 '
17 1968 NATIONAL ADVISORY COMMISSION / , Report on
Civil Disorders 259,
'
18
, 19
Indigent Tenants/sup'ra.,
,
. ,note' 8.
'
Mont. Rev, Codes Ann. 42-201 (1947).
20 N • y • Mult. Dwelling LaW, § 309
1967) .
(McKinney Supp.
21
N.Y. Mult. Dwelling. Law § 302 - a(2) (al
Supp. 1967).
(Mckinney
22Marine v. Ireland, 56 :N.J', ' 130, 265A.2d 526
(1970) •
23 Id .
24Edwards
v. Habib; 397 F,2d 687 (D.C, Cir. (1968).,
I
25 Id •
26 Id •
2742 Harv. L. Rev. 414 (1929).
28Cintrone v. Hertz Truck Leasing and Rental
Service, 45 N.J. 434 , 212 A.2d 769, (1969).
29price v. Shell oil Co., 85 Cal. Rptr. 178, 466
' P.2d722 (1970).
30schi~per v. Leavitt & Sons,
207 A.2d 31
Inc., ~ 44
N,J. 70,
(1964) .
31 Id •
32 6 Will. L. J. 584 '(l971).
fl.
33 Smith v , Marrable, ' 15' 2' Eng : Rep. 69 '3 (1843).
,35 6 Will. : L. J, 585 , (1971)
... '" .,',,
,
'
~
36Ingallsv~ Hobbs, : 156' M.{SS. " 3,4'8,, ' jr: N:E' , ' 286 ' '
(1892).
.' , : : , " ' , '
'
32
37 Id •
e''r ' , . ' Nits:c
.
hk
n k'
V
' e t , 3 10 Mass. , 754 t "' ,39' ,N.E. 2 d
, 38~ac'
(19421.
'
,
'
,
,
644
39
,',
"
,
" Acka'r et v .Carboll'al:'o I jaOMass.
-537, 10 M.E.2d
.
.
,418 (1946).
' ", '
~
40
..
~
'
Id., at 538.
4lBow1es ,v. ' Mahonei; .- 202F.2d ': 320
,(o.c.
Cir. 1952). ,
42Horton V. Marston ,' 352 Mass.
" 322,:'. 225
N~E.2d ,
'.
.
311 , (1967). '
43 Id •
,-
44 '
Lem1e, supra
45
'
Id., p. 4.71.
46
'
,
G. ' Ranney, Landlord and Tenant" (Boston: : Houghton
Mifflin Company, 1970), p. 60 .
47
'
A. Rose, ' Regent Park (Toronto: University Pres~,.'
.
1958), p. ~03 .'
- ,
'48
'"
, C' . Ab
ram, M'an , s Struggle for She1tE~r -, (Cambri,dg~:
~ .. I . T. Press , ', 1964) •
.
'.
"