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Landlord's Liability for Defective Premises: Caveat Lessee, Negligence, Or Strict Liability Jean C

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Landlord's Liability for Defective Premises: Caveat Lessee, Negligence, Or Strict Liability Jean C Santa Clara Law Santa Clara Law Digital Commons Faculty Publications Faculty Scholarship 1-1-1975 Landlord's Liability for Defective Premises: Caveat Lessee, Negligence, or Strict Liability Jean C. Love Santa Clara University School of Law, [email protected] Follow this and additional works at: http://digitalcommons.law.scu.edu/facpubs Recommended Citation 1975 Wis. L. Rev. 19 This Article is brought to you for free and open access by the Faculty Scholarship at Santa Clara Law Digital Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contact [email protected]. LANDLORD'S LIABILITY FOR DEFECTIVE PREMISES: CAVEAT LESSEE, NEGLIGENCE, OR STRICT LIABILITY?* JEAN C. LovEt INTRODUCTION 21 I. LANDLORD-TENANT RELATIONS: COMMON LAW AND Housmo CODES 22 A. The Nature of a Real Property Lease 23 1. STATUS - --- 23 2. CONTRACT 24 3. CONVEYANCE OF PROPERTY 25 4. CONTRACT OR CONVEYANCE? 26 B. The Development of Caveat Lessee ...................... 27 C. Tenant's Remedies Against Landlord 31 1. INDEPENDENT COVENANTS -.......................... 31 a. Landlord's covenant of quiet enjoyment and tenants covenant to pay rent 32 b. Landlord's covenant to repair and tenant's covenant to pay rent 33 2. CONSTRUCTIVE EVICTION 34 D. Housing Codes 37 1. STATUTORY DUTY TO REPAIR 38 2. CRIMINAL SANCTIONS .. 41 3. CIVIL SANCTIONS 42 II. LANDLORD'S LIABILITY FOR DEFEnCTVE PREMISES: COMMON LAW 48 A. General Rule: Immunity from Liability . 48 B. Exceptions to the General Rule . 49 1. UNDISCLOSED LATENT DEFECTS KNOWN TO LESSOR 50 2. PREMISES LEASED FOR ADMISSION OF PUBLIC 53 3. IMPLIED WARRANTY OF HABITABILITY OR MERCHANTABILITY IN FURNISHED DWELLINGS FOR A SHORT TERM 54 4. COVENANT TO REPAIR 57 5. NEGLIGENT REPAIRS 63 6. PREMISES IN COMMON USE 65 7. STATUTORY DUTY TO REPAIR 68 a. Criminal statutes 69 b. Civil statutes 77 * I would like to express my appreciation to Diane Barratt Irwin and Loretta Hersch Selinger for their competent and thorough research assistance; to Professor Edgar Bodenheimer (University of California, Davis) for his translation of German legal materials and his insights on the comparative law aspects of landlord-tenant re- lations; and to Professors Daniel J. Dykstra (University of California, Davis), Mi- chael M. Greenfield (Visiting Professor, University of California, Davis, on leave from Washington University) and Edward H. Rabin (University of California, Da- vis) for their valuable comments on the manuscript of this article. t Acting Professor of Law, University of California, Davis. B.A., 1965; I.D., 1968, University of Wisconsin. HeinOnline -- 1975 Wis. L. Rev. 19 1975 WISCONSIN LAW REVIEW C. Defenses 78 1. GOVERNMENTAL IMMUNITY _____- 78 2. EXPRESS ASSUMPTION OF RISK 81 3. IMPLIED ASSUMPTION OF RISK AND CONTRIBUTORY NEGLIGENCE 86 D. Summary 91 III. LANDLORD-TENANT RELATIONS: RECENT DEVELOPMENTS 91 A. The Development of the Implied Warranty of Habitability 91 B. The Rationale Behind the Implied Warranty of Habitability 98 C. The Scope of the Implied Warranty of Habitability ----------100 1. STANDARD OF HABITABILITY 101 2. TYPE OF LEASE 103 3. NOTICE REQUIREMENT 104 D. Defenses to the Implied Warranty of Habitability ----- 106 E. Remedies Under the Implied Warranty of Habitability --- 108 F. Summary ---- .. .. .. ... 111 IV. LANDLORD'S LIABILITY FOR DEFECTIVE PREMISES: NEGLIGENCE 112 A. The Case For Negligence Liability 7................114 1. POLICY CONSIDERATIONS 116 2. LEGAL PRECEDENTS ............ ------... ........-- _ 117 B. Issues Raised by Imposing a Duty of Reasonable Care .. .......-------- ------..... ... 122 1. PERSONS TO WHOM THE DUTY IS OWED 122 2. SCOPE OF THE DUTY --------------- -- ------......... 123 3. DEFENSES 127 a. Governmental immunity 127 b. Express assumption of risk 127 c. Implied assumption of risk and contributory negligence .. 128 C. Summary 129 V. LANDLORD'S LIABILITY FOR DEFECTIVE PREMISES: STRICT LIABILITY ------ 130 A. The Case for Strict Liability ---....----.............................---.- -- 134 1. POLICY CONSIDERATIONS 134 2. LEGAL PRECEDENT 136 B. Issues Raised by Imposing Strict Liability 144 1. STRICT LIABILITY Per Se ---------------................--.---- 144 2. STRICT TORT LIABILITY OR IMPLIED WARRANTY 145 a. Privity of contract 145 b. Defect 146 c. Notice 150 3. DEFENSES --------- 153 a. Governmental Immunity 153 b. Express Assumption of Risk 153 c. Implied assumption of risk and contributory negligence 155 d. Statute of limitations 156 C. Summary 157 VI. CONCLUSION 158 HeinOnline -- 1975 Wis. L. Rev. 20 1975 1975:19 Landlord's Liability for Defective Premises In the past ten years, the law of landlord-tenant relations has been completely rewritten. The lease, which was once considered primarily a conveyance of real property, is now regarded principally as a contract. The landlord, who once could let a tumble-down house with impunity, now leases residential property subject to an implied warranty of habitability. The tenant, no longer shackled by the doctrine of independent covenants, can assert the full panoply of contract remedies against the landlord who breaches an express or implied covenant in the lease. But what of the tenant (or other person on the property with the tenant's consent) who sustains personal injuries or property dam- age due to a defective or dangerous condition in the premises? What remedies does he have against the landlord? As a general rule, he has none at common law. The landlord is still regarded as the conveyor of an estate in real property who is immune from liability for personal injury or property damage. It is the thesis of this article that recent developments in the law of landlord-tenant relations necessitate a reexamination of the common law principles governing the tort liability of a landlord. If a lease is a contract containing an implied warranty of habitability, a landlord should at least be held to a duty of reasonable care regard- ing the condition of the leased premises. Moreover, if he is in the business of leasing, he should be held strictly liable for personal in- jury or property damage caused by a defect in the premises. Any change in the law regarding a landlord's tort liability will probably be made by the judiciary. Therefore, this article is written principally for those private practitioners and judges who will be- come involved in the litigation of negligence or strict liability actions against landlords. It is also addressed to the American Law Institute, which is currently revising the Restatement of Property. The first division of the revised Restatement is devoted to the law of landlord-tenant relations, and will contain a chapter on the tort liability of a landlord.1 It is hoped that this chapter will not blindly incorporate those sections of the Restatement (Second) of Torts which set forth the common law principles governing the tort liability of a landlord, for they are premised on the notion that a lease is a conveyance. The doctrine of caveat lessee should be reconsidered in the light of the Restatement (Second) of Property's characteriza- tion of a lease as a contract. 1. RESTATEMENT (SECOND) OF PROPERTY (Tent. Draft No. 1, 1973); (Tent. Draft No. 2, 1974). The portion dealing with tort liability of landlords will be chap- ter 21 which is still unpublished as of this writing. For a selective, annotated bib- liography on recent developments in landlord-tenant law see Special Project, Develop- ments in Contemporary Landlord-Tenant Law: An Annotated Bibliography, 26 VAND. L. REv. 689 (1973). HeinOnline -- 1975 Wis. L. Rev. 21 1975 WISCONSIN LAW REVIEW This article will not only propose specific changes in the law but will also survey the cases and scholarly literature discussing the common law tort liability of landlords and relevant aspects of land- lord-tenant relations. It is hoped that such an approach will prove helpful as well as persuasive to those who must decide the future direction of this area of the law. The article consists of five sections. Section one is devoted to the history of landlord-tenant relations, first at common law and then under legislation imposing a duty to repair on the landlord. This section focuses on the tenant's remedies for economic loss caused by the landlord's failure to repair and is de- signed to provide the personal injury lawyer with background infor- mation on landlord-tenant law. The second section describes a land- lord's current tort liability for defective premises, with an emphasis on the provisions of the Restatement (Second) of Torts. The third summarizes recent developments in the law of landlord-tenant rela- tions. The fourth and fifth propose the abolition of a landlord's immunity from tort liability in light of the recent developments out- lined in the third section. The fourth section advocates the imposi- tion of a duty of reasonable care while the fifth advances an alterna- tive theory of strict liability for landlords who are in the business of leasing. I. LANDLORD-TENANT RELATIONS: COMMON LAW AND HOUSING CODES In the United States, landlords are one of the few classes of defendants who generally remain immune from tort liability. Un- like the manufacturers and distributors of defective products, 2 the lessors of defective goods, 8 and the builder-vendors of defective housing,4 lessors of defective premises can still invoke the ancient maxim, caveat emptor.3 To be sure, numerous exceptions to the 2. RESTATEMENT (SECOND) OF TORTS § 402A (1965). 3. E.g., Price v. Shell Oil Co., 2 Cal. 3d 245, 466 P.2d 722, 85 Cal. Rptr. 178 (1970); Cintrone v. Hertz Truck Leasing & Rental Service, 45 N.J. 434, 212 A.2d 769 (1965). 4. E.g., Pollard v. Saxe & Yolles Dev. Co., 12 Cal. 3d 374, 115 Cal. Rptr. 648, 525 P.2d 88 (1974); Schipper v. Levitt & Sons, Inc., 44 N.J. 70, 207 A.2d 314 (1965).
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