428 F.2d 1071 (D.C. Cir. 1970), 22405, Javins v. First Nat. Realty Corp.

Docket Nº:22405, 22406, 22409.
Citation:428 F.2d 1071
Case Date:May 07, 1970
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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428 F.2d 1071 (D.C. Cir. 1970)

Ethel JAVINS, Appellant,



Rudolph SAUNDERS, Appellant,



Stanley GROSS, Appellant,



Nos. 22405, 22406, 22409.

United States Court of Appeals, District of Columbia Circuit.

May 7, 1970

Argued Jan. 16, 1970.

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Mr. Edmund E. Fleming, Boston, Mass., for appellants.

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

Mrs. Caryl S. Terry, Washington, D.C., filed a brief on behalf of Washington Planning and Housing Association as amicus curiae urging reversal.

Mrs. Margaret F. Ewing, Mrs. Florence Wagman Roisman and Mrs. Patricia M. Wald, Washington, D.C., filed a brief on behalf of Neighborhood Legal Services Program as amicus curiae urging reversal.

Messrs. Myron Moskovitz and Peter Honigsberg filed a brief on behalf of National Housing Law Project as amicus curiae urging reversal.

Before WRIGHT, McGOWAN and ROBB, Circuit Judges.

J. SKELLY WRIGHT, Circuit Judge:

These cases present the question whether housing code 1 violations which arise during the term of a lease have any effect upon the tenant's obligation to pay rent. The Landlord and Tenant Branch of the District of Columbia Court of General Sessions ruled proof of such violations inadmissible when proffered as a defense to an eviction action for nonpayment of rent. The District of Columbia Court of Appeals upheld this ruling. Saunders v. First National Realty Corp., 245 A.2d 836 (1968).

Because of the importance of the question presented, we granted appellants' petitions for leave to appeal. We now reverse and hold that a warranty of habitability, measured by the standards set out in the Housing Regulations for the District of Columbia, is implied by

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operation of law into leases of urban dwelling units covered by those Regulations and that breach of this warranty gives rise to the usual remedies for breach of contract.


The facts revealed by the record are simple. By separate written leases, 2 each of the appellants rented an apartment in a three-building apartment complex in Northwest Washington known as Clifton Terrace. The landlord, First National Realty Corporation, filed separate actions in the Landlord and Tenant Branch of the Court of General Sessions on April 8, 1966, seeking possession on the ground that each of the appellants had defaulted in the payment of rent due for the month of April. The tenants, appellants here, admitted that they had not paid the landlord any rent for April. However, they alleged numerous violations of the Housing Regulations as 'an equitable defense or (a) claim by way of recoupment or set-off in an amount equal to the rent claim, ' as provided in the rules of the Court of General Sessions. 3 They 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 * * *.'

Settled Statement of Proceedings and Evidence, p. 2 (1966). Appellants conceded at trial, however, that this offer of proof reached only violations which had arisen since the term of the lease had commenced. The Court of General Sessions refused appellants' offer of proof 4 and entered judgment for the landlord. The District of Columbia Court of Appeals affirmed, rejecting the argument made by appellants that the landlord was under a contractual duty to maintain the premises in compliance with the Housing Regulations. Saunders v. First National Realty Corp., supra, 245 A.2d at 838. 5

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Since, in traditional analysis, a lease was the conveyance of an interest in land, courts have usually utilized the special rules governing real property transactions to resolve controversies involving leases. However, as the Supreme Court has noted in another context, 'the body of private property law * * *, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical.' 6 Courts have a duty to reappraise old doctrines in the light of the facts and values of contemporary life-- particularly old common law doctrines which the courts themselves created and developed. 7 As we have said before, 'The continued vitality of the common law * * * depends upon its ability to reflect contemporary community values and ethics.' 8

The assumption of landlord-tenant law, derived from feudal property law, that a lease primarily conveyed to the tenant an interest in land may have been reasonable in a rural, agrarian society; it may continue to be reasonable in some leases involving farming or commercial land. In these cases, the value of the lease to the tenant is the land itself. But in the case of the modern apartment dweller, the value of the lease is that it gives him a place to live. The city dweller who seeks to lease an apartment on the third floor of a tenement has little interest in the land 30 or 40 feet below, or even in the bare right to possession within the four walls of his apartment. When American city dwellers, both rich and poor, seek 'shelter' today, they seek a well known package of goods and services 9 -- a package which includes not merely walls and ceilings, but also adequate heat, light and ventilation, serviceable plumbing facilities, secure windows and doors, proper sanitation, and proper maintenance.

Professor Powell summarizes the present state of the law:

'* * * The complexities of city life, and the proliferated problems of modern society in general, have created new problems for lessors and lessees and these have been commonly handled by specific clauses inserted in leases. This growth in the number and detail of specific lease covenants has reintroduced into the law of estates for years a predominantly contractual ingredient. In practice, the law today concerning estates for years consists chiefly of rules determining the construction and effect of lease covenants. * * *' 10

Ironically, however, the rules governing the construction and interpretation of 'predominantly contractual' obligations in leases have too often remained rooted in old property law.

Some courts have realized that certain of the old rules of property law

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governing leases are inappropriate for today's transactions. In order to reach results more in accord with the legitimate expectations of the parties and the standards of the community, courts have been gradually introducing more modern precepts of contract law in interpreting leases. 11 Proceeding piecemeal has, however, led to confusion where 'decisions are frequently conflicting, not because of a healthy disagreement on social policy, but because of the lingering impact of rules whose policies are long since dead.' 12

In our judgment the trend toward treating leases as contracts is wise and well considered. Our holding in this case reflects a belief that leases of urban dwelling units should be interpreted and construed like any other contract. 13


Modern contract law has recognized that the buyer of goods and services in an industrialized society must rely upon the skill and honesty of the supplier to assure that goods and services purchased are of adequate quality. 14 In interpreting most contracts, courts have sought to protect the legitimate expectations of the buyer and have steadily widened the seller's responsibility for the quality of goods and services through implied warranties of fitness and merchantability. 15 Thus without any special agreement a merchant will be held to warrant that his goods are fit for the ordinary purposes for which such goods are used and that they are at least of reasonably average quality. Moreover, if the supplier has been notified that goods are required for a specific purpose, he will be held to warrant that any goods sold are fit for that purpose. These implied warranties have become widely accepted and well established features of the common law, supported by the overwhelming body of case law. 16 Today most states as well as the District of Columbia 17 have codified and enacted these warranties into statute, as to the sale of goods, in the Uniform Commercial Code.

Implied warranties of quality have not been limited to cases involving sales. The consumer renting a chattel, paying for services, or buying a combination of goods and services must rely upon the skill and honesty of the supplier to at least the same extent as a purchaser of goods. Courts have not hesitated to find implied warranties of fitness and merchantability

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in such situations. 18 In most areas product liability law has moved far beyond 'mere' implied warranties running between two parties in privity with each other. 19

The rigid doctrines of real property law have tended to inhibit the application of implied warranties to transactions involving real estate. 20 Now, however, courts have begun to hold sellers and developers of real property responsible for the quality of their product. 21 For example, builders of new homes have recently been held liable to purchasers for improper construction on the ground that the builders had breached an implied warranty of fitness. 22 In other cases courts have held builders of new homes liable for breach of an implied warranty that all local building regulations had been complied with. 23 And following the developments in other areas, very recent decisions 24 and commentary 25 suggest the possible extension of...

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