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Landlord and Tenant Law - the Mpliedi Warranty of Habitability in Residential Leases Barbara Maier

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Landlord and Tenant Law - the Mpliedi Warranty of Habitability in Residential Leases Barbara Maier Marquette Law Review Volume 58 Article 14 Issue 1 1975 (Number 1) Landlord and Tenant Law - The mpliedI Warranty of Habitability in Residential Leases Barbara Maier Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Law Commons Repository Citation Barbara Maier, Landlord and Tenant Law - The Implied Warranty of Habitability in Residential Leases, 58 Marq. L. Rev. 191 (1975). Available at: http://scholarship.law.marquette.edu/mulr/vol58/iss1/14 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. 19741 RECENT DECISIONS obtained while the juvenile was under the jurisdiction of the juve- nile court to be later used in a criminal trial. For the above mentioned reasons, the Arizona approach in Maloney is to be preferred over that of the Minnesota court in Loyd. When this question presents itself in other jurisdictions, Maloney is the precedent which should be followed.27 GREGORY M. WEYANDT Landlord and Tenant Law-The Implied Warranty of Habitability in Residential Leases-The recent case of Green v. Sumskil arose when landlord Jack Sumski, seeking possession of leased premises and back rent, commenced an unlawful detainer action in the San Francisco Small Claims Court. The tenant admitted nonpayment of rent and defended the action on the ground that the landlord failed to maintain the premises in a habitable condition. The small claims court awarded the landlord possession of the premises and entered a money judgment for back rent against the tenant. The tenant appealed to the San Francisco Superior Court and a de novo trial was held. The tenant submitted a copy of an inspection report of the San Francisco Department of Public Works disclos- ing about eighty housing code violations in the building as well as an order of the department scheduling a condemnation hearing. The tenant also submitted a detailed list of serious defects2 which had not been repaired by the landlord after notice. The landlord 27. As yet, Wisconsin has not been faced with this problem. Wis. STAT. § 48.38(1) (1971), states: • . The disposition of any child's case or any evidence given in the juvenile court shall not be admissable as evidence against the child in any case or proceeding in any other court ... In Banas v. State, 34 Wis. 2d 468, 473, 149 N.W.2d 571, 574 (1966), the court stated: • * . Under the prohibitions of sec. 48.38(1) the disposition of the child's case and any evidence given in the juvenile court are not admissable as evidence against the child in any case or proceeding in any other court. This statement was made with reference to the refusal to allow a juvenile adjudication to be used to impeach a juvenile witness. Whether it would apply in the same manner in a Loyd fact situation and what is meant by "evidence given in the juvenile court" remains to be seen. 1. Green v. Sumski, 10 Cal. 3d 616, 517 P.2d 1168, 111 Cal. Rptr. 704 (1974). 2. The supreme court listed some of the more serious defects described by the tenant including (I) the collapse and non-repair of the bathroom ceiling, (2) the continued presence of rats, mice, and cock-roaches on the premises, (3) the lack of any heat in four of the apartment's rooms, (4) plumbing blockages, (5) exposed and faulty wiring, and (6) an illegally installed and dangerous stove. Id. at 621, 517 P.2d at 1170, 111 Cal. Rptr. at 706. MARQUETTE LAW REVIEW [Vol. 58 did not contest the presence of these defects. The Superior Court found that California's "repair and deduct" statutes' constituted the tenant's exclusive remedy and that such defects afforded the tenant no defense in an unlawful detainer action. Judgment was entered for the landlord awarding him possession and back rent. On appeal to the Supreme Court of California that court adopted an implied warranty of habitability in all residential leases4 and held that the landlord's breach of this warranty may be raised by a tenant as a defense in an unlawful detainer action.' In addition, the court held that the statutory "repair and deduct" provisions of the California Civil Code section 1941 etseq.6 did not preclude this interpretation. The Supreme Court issued a peremp- tory writ of mandate directing the San Francisco Superior Court to vacate the judgment entered in this case and to proceed with the trial of the unlawful detainer action in accordance with these findings. The modern trend of the courts to imply a warranty to habita- bility in residential leases must be considered with reference to the historical landlord-tenant doctrines. At common law the lease of real property was regarded as a conveyance of an interest in land7 and as such the landlord-tenant relationship was governed by real property law. Under the real property conveyance theory the prin- 3. The pertinent California "repair and deduct" statutes are as follows: CAL. CIV. CODE § 1941 (West 1970). The lessor of a building intended for the occupation of human beings must, in the absence of an agreement to the contrary, put it into a condition fit for such occupation, and repair all subsequent dilapidations thereof, which render it untenant- able .... CAL. CIV. CODE § 1942 (West Supp. 1971) Repairs by lessee; rent deduction; limit. (a) If within a reasonable time after notice to the lessor, of dilapidations which he ought to repair, he neglects to do so, the lessee may repair the same himself, where the cost of such repairs . does not require an expenditure greater than one month's rent of the premises, in which case he shall be discharged from further payment of rent, or performance of other condi- tions. This remedy shall not be available to the lessee more than once in any 12- month period. (b) For the purposes of this section, if a lessee acts to repair and deduct after the 30th day following notice, he is presumed to have acted after a reasonable time. ... See also CAL. CIv. CODE § 1941.1 (West Supp. 1971) which defines untenantable dwelling and CAL. CIv. CODE § 1942.5 (West Supp. 1971) which prohibits retaliatory eviction. 4. 10 Cal. 3d at 629, 517 P.2d at 1176, 111 Cal. Rptr. at 712 5. Id. at 636, 517 P.2d at 1178, 111 Cal. Rptr. at 718. 6. CAL. CIv. CODE § 1941 (West 1970); CAL. CIv. CODE §§ 1941.1, 1941.2, 1942, 1942.1, 1942.5 (West Supp. 1971). 7. See Callahan v. Martin, 3 Cal. 2d 110, 118, 43 P.2d 788, 792, 101 A.L.R. 871, 877 (1935) and cases cited therein; Minnis v. Newbro-Gallogly Co., 174 Mich. 635, 639, 140 N.W. 980, 982 (1913). 1974] RECENT DECISIONS ciple of caveat emptor applied.' The tenant took the premises as he found them and assumed all risks as to the condition of the premises. The landlord made no warranties that the premises were in a tenantable condition or adapted to the purpose for which they were leased.' The general rule was that the landlord was not liable either to a tenant or to others for defective conditions in the de- mised premises whether the conditions existed at the time of the lease or developed thereafter.' The caveat emptor doctrine applied because the lessee was presumed to have inspected the premises prior to occupancy. To alleviate the harsh effects of the caveat emptor doctrine the courts developed several exceptions: The land- lord could expressly covenant to put the premises in a tenantable condition and maintain them." If the landlord knew of the defects and such defects would not be disclosed to the lessee upon reasona- ble inspection, the lessee would be justified in abandoning the premises and be relieved from any further obligations under the lease grounded upon the landlord's fraudulent concealment of the defect.' 2 In the case of a furnished dwelling leased for a short period of time, some courts have recognized an implied warranty of habitability finding that the parties anticipate immediate occu- pancy without alteration and that it is difficult to inspect a fur- nished dwelling before renting. 3 Where the premises had not been fully constructed at the time the lease was made so as to allow the tenant an opportunity to inspect, the lessee was held not to be bound by the lease. 4 The landlord had the primary obligation under the conveyanc- ing theory to put the tenant in exclusive possession of the premises and refrain from disturbing him.15 The tenant maintained complete control of the premises to the exclusion of the landlord.' The right 8. 2 R. POWELL, REAL PROPERTY, 233, 300 (Rohan ed. 1971). 9. Murray v. Albertson, 50 N.J.L. 167, 13 A. 394 (1888) and cases cited therein; Auer v. Vahl, 129 Wis. 635, 109 N.W. 529 (1906). 10. Del Pino v. Gualtieri, 265 Cal. App. 2d 912, 919, 71 Cal. Rptr. 716, 721 (1968). 11. See, e.g., Johnson v. Prange-Geussenhainer Co., 240 Wis. 363, 2 N.W.2d 723 (1942). 12. Hinsdale v. McCune, 135 Iowa 682, 113 N.W. 478 (1907). 13. Pines v. Perssion, 14 Wis. 2d 590, 111 N.W.2d 409 (1961). In Lemle v. Breeden, 51 Hawaii 426, 462 P.2d 470, 40 A.L.R. 3d 637 (1969), the court pointed out that this exception is artificial and the general rule of caveat emptor must be re-examined.
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