Case Western Reserve Law Review Volume 22 Issue 4 Article 6 1971 Landlord v. Tenant: An Appraisal of the Habitability and Repair Problem James P. Kratochvill Carl Vaccaro Follow this and additional works at: https://scholarlycommons.law.case.edu/caselrev Part of the Law Commons Recommended Citation James P. Kratochvill and Carl Vaccaro, Landlord v. Tenant: An Appraisal of the Habitability and Repair Problem, 22 Case W. Rsrv. L. Rev. 739 (1971) Available at: https://scholarlycommons.law.case.edu/caselrev/vol22/iss4/6 This Note is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. 19711 NOTE Landlord v. Tenant: An Appraisal of the Habitability and Repair Problem I. INTRODUCTION Today's tenant usually has no guarantee that the premises he rents are habitable, or that repairs will be made as they become necessary. In most jurisdictions, if his premises become unfit to live in, the tenant's only legal recourse is to abandon them, and this is hardly an adequate alternative in these times of severe housing short- ages. Much of the tenant's plight is a direct result of the outmoded law that governs the landlord-tenant relationship. This law was originally formulated in 16th century England to govern the convey- ance of agrarian estates for years. Its only practical effect for the tenant was to protect him against interference from the lessor with his right to possession and enjoyment, and to set minimal require- ments for the use and subsequent disposition of the land. The principles composing the bulk of landlord-tenant law remain virtually unchanged today, although the needs of today's tenant bear no re- semblance to those of his feudal counterpart. This Note will ex- amine the common law of landlord-tenant, the statutory inroads into the common law, and some recent cases that have radically altered the common law. II. COMMON LAw Although landlord-tenant law has been largely formulated on principles of real property, originally the lessee's rights were con- tractual.' Prior to the 16th century, an English lessee's property interest was labeled personal rather than real.' He was given scant protection in the enjoyment of his property and was afforded no remedy against ejectors. The lessee had possession but not seisen, and his interest descended as personal property to his heirs. By the 16th century, however, the lease had been recognized as a real prop- erty conveyance and afforded the lessee rights superior to those he had in contract. He was able to retain possession against ejection, 1 1 AMmuCAN LAW OF PROPERTY § 3.11, at 202 (A.J. Casner ed. 1952). 21d. § 3.1, at 176. Real property classification was limited to estates in fee and es- tates for life. CASE WESTERN RESERVE LAW REVIEW [Vol. 22: 739 thus protecting his property interest from interference by third per- sons. This remedy gave him a possessory interest in the land; the lessee for years possessed the same rights against ejectors as the owner of any other estate in land.3 In America, the lease was also treated as a conveyance of land, and thus the courts adopted real property principles to settle conflicting interests between lessor and lessee.4 Initially, lessees were interested in the use of land for agricultural purposes. Lease agreements provided that in exchange for the right to use the land, the tenant was obliged to pay rent.5 If he de- faulted in his rent obligation, he relinquished possession. Subse- quently, lessees became more and more interested in the use of build- ings on the land than in use of the land itself. As a consequence of this new development, the parties began to exchange convenants that placed limitations on use of the land and the tenant's right to transfer, and governed the time and manner of paying rent. Also exchanged were covenants allocating responsibility for the repair of defects in the property and establishing liabilities for the failure to comply with any covenant. An instrument containing covenants of this sort was more than just a grant of an estate in land that could be adequately governed by property law;6 it required an application of contract law. Thus, landlord-tenant law became a "hermaphro- dite" or combination of property and contract law.7 The courts, however, still considered the land of primary importance; the cove- nants or contractual agreements specifying rights and duties were merely incidental to the interest in land. The courts considered these covenants so incidental that they held them independent of the land.8 Thus, a tenant could not refuse to pay rent because of a 3 Yet the lessee's interests continued to be labeled personal property, a chattel real. This was primarily because of the desire to continue to apply rules of testamentary and intestate succession to his interests in the land. See Lesar, Landlord and Tenant Reform, 35 N.Y.U.L. REV. 1279 (1960). 4 Id. at 1280. Quinn & Phillips, Law of Landlord-Tenant:A Critical Evaluation of the Past with Guidelines for the Future, 38 FORDHAM L. REV. 225, 227-28 (1969). 6 Lesar, supra note 3, at 1281. 7 3 G. THoMPsoN, REAL PROPERTY § 1110, at 377 (J. Grimes repl. ed. 1959). 8 See, e.g., Stewart v. Childs Co., 86 N.J.L. 648, 92 A. 392 (Ct. Err. & App. 1914). These independent covenants have been likened to a two level relationship. The first or basic level entitled the tenant to possession in return for rent. The second or less im. portant level entitled the tenant to services from the landlord. Covenants on the first level were not reciprocal with covenants on the second level. The tenant had to pay the full rent as long as he possessed the premises (level one), even though the landlord failed miserably in the delivery of services (level two). Quinn & Phillips, supra note 5, at 233-34. 1971] LANDLORD AND TENANT landlord's failure to repair.9 The emphasis on the land itself had entrenched landlord-tenant law in rigid property law concepts. Since the lessee was a purchaser of an estate in land, he was sub- ject to the strict property rule of caveat emptor - let the buyer be- ware. Under the rule of caveat emptor, the lessor did not warrant that property was fit for occupation or suitable for the purpose leased.10 The lessee was obliged to thoroughly inspect the premises before accepting them. If he had no opportunity to inspect, he was expected to secure an express warranty of their habitability from the lessor before entering into the lease. If he failed to do so, he had no right to terminate the lease because of the unsatisfactory condi- tion of the premises. The crippling effect that caveat emptor often had on tenants gave rise to several exceptions to the rule. The first was known as the "furnished house" rule. This rule applied to the leasing of furnished premises for a short term when the tenant required immediate oc- cupancy. The lessor in such a case was held to have given an im- plied warranty that the leased premises were suitable for occupancy at the time the lease was executed." A second deviation from the rule of caveat emptor occurred when the lessee was restricted to a particular use of the premises and had accepted the lease before the premises were completely constructed or altered. Here again, the courts held that the lessor had warranted the fitness of the premises for the leased purpose.12 A third exception required the lessor to dis- close any known latent defects not generally discoverable by the lessee." The courts' reasoning behind all of these exceptions was that the tenant lacked sufficient opportunity to inspect the property at the time he entered into the lease.14 9 Another rationale offered for this early development was that property law con- cepts were fixed before the courts had developed the concept of mutual dependency in contracts. 6 S. WILUSTON, CONTRACTS § 890, at 587-88 (3d ed. W. Jaeger 1962). See also 3 G. THOmPSON, supra note 7, at 377. 10 1 AMERiCAN LAW OF PROPERTY § 3.45, at 267 (A.J. Casner ed. 1952). 11See, e.g., Smith v. Marrable, 11 M. & W. 6, 152 Eng. Rep. 693 (Ex. 1843). The principal American case is Ingalls v. Hobbs, 156 Mass. 348, 31 N.E. 286 (1892) (uninhabitable beach house for one season). The exception was strictly limited to the condition of the premises at the beginning of the lease; it did not cover defects arising thereafter. Davenport v. Squibb, 300 Mass. 629, 70 N.E.2d 793 (1947). 12See, e.g., Woolford v. Electric Appliances, 24 Cal. App. 2d 385, 75 P.2d 112 (Dist. Ct. App. 1938); J.D. Young Corp. v. McClintic, 26 S.W.2d 460 (Tex. Civ. App. 1930). '3 See, e.g., Minor v. Sharon, 112 Mass. 477 (1873); Ryan v. State, 192 Misc. 408, 77 N.Y.S.2d 764 (Ct. Cl. 1948). 14 See, e.g., Ingalls v. Hobbs, 156 Mass. 348, 31 N.E. 286 (1892). See also Skil- CASE WESTERN RESERVE LAW REVIEW [Vol. 22: 739 Generally, the lessor was under no obligation to make property repairs.'- In fact, the tenant was required to make any minor re- pairs, this obligation stemming from his duty to return the premises in substantially the same condition as he received them.