Green v. Superior Court

• Citation: 111 Cal.Rptr. 704,10 Cal.3d 616
• Decision Date: 15 January 1974
• Docket Number: S.F. 22993
• Court: United States State Supreme Court (California)
• Parties: , 517 P.2d 1168 Roger GREEN, Petitioner, v. The SUPERIOR COURT OF the CITY AND COUNTY OF SAN FRANCISCO, Respondent; Jack SUMSKI, Real Party in Interest.

Page 704

111 Cal.Rptr. 704

10 Cal.3d 616, 517 P.2d 1168

Roger GREEN, Petitioner, v. The SUPERIOR COURT OF the CITY AND COUNTY OF SAN FRANCISCO, Respondent;

Jack SUMSKI, Real Party in Interest.

S.F. 22993.

Supreme Court of California,

In Bank.

Jan. 15, 1974.

Gilbert T. Graham and Lawrence L. Curtice, San Francisco, for petitioner.

Allan David Heskin, Berkeley, Myron Moskovitz, San Francisco, and Rosalyn M. Chapman, Los Angeles, as amici curiae on behalf of petitioner.

No appearance for respondent or for real party in interest.

TOBRINER, Justice.

Under traditional common law doctrine, long followed in California, a landlord was under no duty to maintain leased dwellings in habitable condition during the term of the lease. In the past several years, however, the highest courts of a rapidly growing number of states and the District of Columbia have reexamined the bases of the old common law rule and have uniformly determined that it no longer corresponds to the realities of the modern urban landlord-tenant relationship. Accordingly, each of these jurisdictions has discarded the old common law rule and has adopted an implied warranty of habitability for residential leases. ¹ In June 1972, the California Court of Appeal reviewed this emerging out-of-state precedent in the case of Hinson v. Delis (1972) 26 Cal.App.3d 62, 102 Cal.Rptr. 661, and, persuaded by the reasoning of these decisions, held that a warranty of habitability is implied by law in residential leases in California. We granted a hearing in the instant case, and a companion case, ² to consider the Hinson decision and to determine whether the breach of such implied warranty may be raised as a defense by a tenant in an unlawful detainer action.

For the reasons discussed below, we have determined that the Hinson court properly recognized a common law implied warranty of habitability in residential leases in California, and we conclude that the breach of such warranty may be raised as a defense in an unlawful detainer action.

First, as the recent line of out-of-state cases comprehensively demonstrate, the factual and legal premises underlying the original common law rule in this area have long ceased to exist; continued adherence to the time-worn doctrine conflicts with the expectations and demands of the contemporary landlord-tenant relationship and with modern legal principles in analogous fields. To remain viable, the common law must reflect the realities of present day society; an implied warranty of habitability in residential leases must therefore be recognized.

Second, we shall point out that the statutory 'repair and deduct' provisions of Civil Code section 1941 et seq. do not preclude this development in the common law, for such enactments were never intended to be the exclusive remedy for tenants but have always been viewed as complementary to existing common law rights.

Finally, we have concluded that a landlord's breach of this warranty of habitability may be raised as a defense in an unlawful detainer action. Past California cases have established that a defendant in an unlawful detainer action may raise any affirmative defense which, if established, will preserve the tenant's possession of the premises. As we shall explain, a landlord's breach of a warranty of habitability directly relates to whether any rent is 'due and owing' by the tenant; hence, such breach may be determinative of whether the landlord or tenant is entitled to possession of the premises upon nonpayment of rent. Accordingly, the tenant may properly raise the issue of warranty of habitability in an unlawful detainer action.

1. The facts of the instant case.

We begin with a brief review of the facts of the instant case, which reveal a somewhat typical unlawful detainer action. On September 27, 1972, the landlord Jack Sumski commenced an unlawful detainer action in the San Francisco Small Claims Court seeking possession of the leased premises and $300 in back rent. The tenant admitted non-payment of rent but defended the action on the ground that the landlord had failed to maintain the leased premises in a habitable condition. The small claims court awarded possession of the premises to the landlord and entered a money judgment for $225 against the tenant.

The tenant then appealed the decision to the San Francisco Superior Court, where a de novo trial was held pursuant to section 117j of the Code of Civil Procedure. In support of his claim of uninhabitability, the tenant submitted a copy of an October 1972 inspection report of the San Francisco Department of Public Works disclosing some 80 housing code violations in the building in question, as well as an order of the department scheduling a condemnation hearing for January 19, 1973. In addition, in testimony at trial, petitioner and his roommate detailed a long list of serious defects in the leased premises which had not been repaired by the landlord after notice and which they claimed rendered the premises uninhabitable. Some of the more serious defects described by the tenants included (1) the collapse and non-repair of the bathroom ceiling, (2) the continued presence of rats, mice, and cockroaches 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. ³ The landlord apparently did not attempt to contest the presence of serious defects in the leased premises, but instead claimed that such defects afforded the tenant no defense in an unlawful detainer action.

The superior court judge ultimately agreed with the landlord's contention, holding that the 'repair and deduct' provisions of Civil Code section 1941 et seq. constituted the tenant's exclusive remedy under these circumstances. ⁴ Accordingly, the superior court entered judgment for the landlord, awarding him $225 and possession of the premises.

The tenant thereafter sought certification and transfer of the case to the Court of Appeal (see Cal. Rules of Court, rules 62, 63), but the superior court denied the request. The tenant then sought a writ of mandate or prohibition from the Court of Appeal, contending that the trial court had erroneously failed to follow the Hinson decision. The Court of Appeal denied the writ summarily; the tenant thereafter sought a hearing in this court, because of the statewide importance of the general issues presented (cf. Treber v. Superior Court (1969) 68 Cal.2d 128, 131, 65 Cal.Rptr. 330, 436 P.2d 330; Brown v. Superior Court (1971) 5 Cal.3d 509, 515, 96 Cal.Rptr. 584, 487 P.2d 1224), we exercised our discretion and issued an alternative writ of mandate, ⁵ staying the execution of judgment conditioned upon the tenant's payment into court of all rent which had accrued since the superior court judgment and all future rent as it became due. ⁶ We now turn to the general legal issues presented.

2. The transformation of the landlord tenant relationship and developments in analogous areas of law compel the recognition of a common law implied warranty of habitability in residential leases in California.

At common law, the real estate lease developed in the field of real property law, not contract law. Under property law concepts, a lease was considered a conveyance or sale of the premises for a term of years, subject to the ancient doctrine of caveat emptor. Thus, under traditional common law rules, the landlord owed no duty to place leased premises in a habitable condition and no obligation to repair the premises. (3 Holdsworth, A History of English Law (5th ed. 1966) pp. 122--123; see, e.g., Brewster v. DeFremery (1867) 33 Cal. 341, 345--346.) These original common law precepts perhaps suited the agrarianism of the early Middle Ages which was their matrix; at such time, the primary value of a lease lay in the land itself and whatever simple living structures may have been included in the leasehold were of secondary importance and were readily repairable by the typical 'jack-of-all-trades' lessee farmer. Furthermore, because the law of property crystallized before the development of mutually dependent covenants in contract law, a lessee's covenant to pay rent was considered at common law as independent of the lessor's covenants. Thus even when a lessor expressly covenanted to make repairs, the lessor's breach did not justify the lessee's withholding of the rent. (See 6 Williston, Contracts (3d ed. 1962) § 890, pp. 580--589; Arnold v. Krigbaum (1912) 169 Cal. 143, 145, 146 P. 423.)

In recent years, however, a growing number of courts have begun to re-examine these 'settled' common law rules in light of contemporary conditions, and, after thorough analysis, all of these courts have discarded the traditional doctrine as incompatible with contemporary social conditions and modern legal values. This emerging line of decisions, along with a veritable flood of academic commentaries, ⁷ demonstrates the obsolescence of the traditional common law rule absolving a landlord of any duty to maintain leased premises in a habitable condition during the term of the lease.

The recent decisions recognize initially that the geographic and economic conditions that characterized the agrarian lessor-lessee transaction have been entirely transformed in the modern urban landlord-tenant relationship. We have suggested that in the Middle Ages, and, indeed, until the urbanization of the industrial revolution, the land itself was by far the most important element of a lease transaction; this predominance explained the law's treatment of such leases as conveyances of interests in land. In today's urban residential leases, however, land as such plays no comparable role. The typical city dweller, who frequently leases an apartment several stories above the actual plot of land on which an apartment building rests, cannot realistically be viewed as acquiring an interest in land; rather, he has contracted for a place to...