Saunders v. First National Realty Corporation

• Decision Date: 23 September 1968
• Docket Number: No. 4119. {DO] No. 4120. {DO] No. 4122.,4119. {DO] No. 4120. {DO] No. 4122.
• Citation: 245 A.2d 836
• Parties: Rudolph SAUNDERS, Appellant, v. FIRST NATIONAL REALTY CORPORATION, Appellee. Ethel JAVINS, Appellant, v. FIRST NATIONAL REALTY CORPORATION, Appellee. Gladys GRANT, Appellant, v. FIRST NATIONAL REALTY CORPORATION, Appellee. Stanley GROSS, Sr., Appellant, v. FIRST NATIONAL REALTY CORPORATION, Appellee.
• Court: D.C. Court of Appeals

Page 836

245 A.2d 836

Rudolph SAUNDERS, Appellant, v. FIRST NATIONAL REALTY CORPORATION, Appellee.

Ethel JAVINS, Appellant, v. FIRST NATIONAL REALTY CORPORATION, Appellee.

Gladys GRANT, Appellant, v. FIRST NATIONAL REALTY CORPORATION, Appellee.

Stanley GROSS, Sr., Appellant, v. FIRST NATIONAL REALTY CORPORATION, Appellee.

No. 4119. {DO] No. 4120. {DO] No. 4122.

District of Columbia Court of Appeals.

Argued March 11, 1968.

Decided September 23, 1968.

Edmund E. Fleming, Des Moines, Iowa, for appellants.

Herman Miller, Washington, D.C., for appellee.

Before HOOD, Chief Judge, and MYERS and KELLY, Associate Judges.

HOOD, Chief Judge:

Appellants were tenants in a large apartment complex known as Clifton Terrace. Their landlord, the appellee, filed separate actions against them for possession because of nonpayment of rent. Represented by the same counsel, appellants demanded trial by jury and presented identical defenses. At trial appellants offered to prove:

That there are approximately 1500 violations of the Housing Regulations of the District of Columbia in the building at Clifton Terrace, where Defendant resides some affecting the premises of this Defendant directly, others, indirectly, and all tending to establish a course of conduct of violation of the Housing Regulations to the damage of Defendants and of others similarly situated.

This offer of proof was rejected by the trial court, and counsel for appellants then advised the court that without such evidence there were no issues to be tried. Accordingly the court entered judgment for possession in each of the cases.

We first consider appellee's claim that these cases are moot. This claim is based on appellee's assertion (not disputed by appellants) that three of appellants have voluntarily moved from the premises and the fourth has voluntarily paid his rent and continues to pay rent to the new owner of the apartment house, and that appellee, having sold the apartment house, has no claim to possession of the four apartments. The argument is that since the actions sought possession only and possession is no longer in dispute, the appeals are moot.

Where legal issues raised on appeal would be res judicata between the parties in a subsequent proceeding, an appeal should not be dismissed even though the main controversy has become moot.¹ In Brown v. Southall Realty Co., D.C.App., 237 A.2d 834 (1968), we recognized that rights regarding the validity of a lease and the amount of rent due under it would be irrevocably established if the judgment in a possessory action for nonpayment of rent was allowed to stand. Since appellants here contended that no rents were due because of appellee's violations of the Housing Regulations, we believe a decision on the merits of the appeal is necessary.

Two arguments are advanced by appellants. The first, made at oral argument, is that under our ruling in Brown v. Southall Realty Co., supra, if violations of the Housing Regulations occur during the tenancy (appellants conceded they could not prove the existence of any of the alleged violations at the commencement of the tenancies) and the landlord failed to correct them, the lease becomes illegal and void. Our holding in Southall was that where the owner of dwelling property, knowing that Housing Code violations exist on the property which render it unsafe and unsanitary executes a lease for the property, such lease is void and cannot be enforced. We did not hold and we now refuse to hold that violations occurring after the tenancy is created void the lease.

Appellants' main argument, advanced in their brief, is that the Housing Regulations have abrogated the common law relation between landlord and tenant and have created a contractual duty on the landlord to comply with the Regulations. From this premise appellants argue that if the landlord fails to comply, the tenant, in an action for possession for nonpayment of rent, may use such failure as "an equitable defense or claim by way of recoupment or set-off in an amount equal to the rent claim" under Rule 4(c) of the Landlord and Tenant Branch of the trial court. This rule limits the landlord's basis for recovery of possession where the consideration for the rent has failed wholly or in part because of the landlord's breach of an express or implied lease obligation, and modifies the common law rule of independent covenants in the lease.² Therefore, if appellee had a contractual duty to maintain the premises in compliance with the Housing Regulations, appellants may properly defend by way of set-off against the rent owed.

The long established rule in this jurisdiction, following the common law, is that, in the absence of statute or express covenant in the lease, a landlord does not impliedly covenant or warrant that the leased premises are in habitable condition and the landlord is not obligated to make ordinary repairs to the leased premises in the exclusive control of the tenant. The question here presented is whether the Housing Regulations impose upon the landlord a contractual duty to maintain the premises in compliance with the Regulations.

In both Edwards v. Habib, D.C.Cir., 397 F.2d 687 (decided May 17, 1968) and Whetzel v. Jess Fisher Management Co., 108 U.S.App.D.C. 385, 282 F.2d 943 (1960), the court implied that the Housing Regulations have the force and effect of statute, and for present purposes we will so treat the Regulations. Assuming, but not deciding, that in enacting the Regulations the Commissioners of the District of Columbia had the power to impose upon landlords a contractual duty, enforceable by tenants, to comply with the Regulations, the question is did they intend to do so and bring about a drastic change in the landlord and tenant law of this jurisdiction.

"No statute is to be construed as altering the common law, farther than its words import. It is not to be construed as making any innovation upon the common law which it does not fairly express." Shaw v. Railroad Co., 101 U.S. 557, 565, 25 L.Ed. 892 (1880), quoted with approval in Robert C. Herd & Co. v. Krawill Machinery Corp., 359 U.S. 297, 304-305, 79 S.Ct. 766, 3 L.Ed.2d 820 (1959).³ We find nothing in the Housing Regulations expressly or necessarily implying that a contractual duty is imposed on the landlords to...