Hinson v. Delis

• Citation: 26 Cal.App.3d 62,102 Cal.Rptr. 661
• Court: California Court of Appeals
• Decision Date: 15 June 1972
• Parties: Helen HINSON, Plaintiff and Appellant, v. Nick DELIS, doing business as Delis Enterprises, Defendant and Respondent. Civ. 29503.

Page 661

102 Cal.Rptr. 661

26 Cal.App.3d 62

Helen HINSON, Plaintiff and Appellant, v. Nick DELIS, doing business as Delis Enterprises, Defendant and Respondent.

Civ. 29503.

Court of Appeal, First District, Division 3, California.

June 15, 1972.

Myron Moskovitz, National Housing & Economic Development Law Project, Earl Warren Legal Center, Berkeley, Marcus R. Peppard, Contra Costa Legal Service Foundation, Richmond, for plaintiff-appellant.

CALDECOTT, Associate Justice.

On or about November 10, 1968, appellant Hinson, the tenant, took possession of an apartment in the City of Richmond, pursuant to a written month-to-month rental agreement with respondent Delis, the landlord. The monthly rental was $90. Apparently the apartment was in adequate condition at this time, with the exception of the improperly fitted glass in the front door.

In the early part of November 1969, through no fault of the tenant or her children, the floor in her bathroom began to weaken, apparently from dry rot, and a hole soon developed in the floor. In early November, when she paid her November rent, the tenant informed the landlord's resident manager about the hole. Neither the landlord nor his manager did anything to fix the floor and, in late November, the tenant fell through the hole and allegedly hurt her back. Between December 1, 1969, and the end of January 1970, the tenant fell on two other occasions due to the hole in the floor of the bathroom. On February 4, 1970, the tenant's ten-year old son fell in the bathroom because of the hole.

During the tenant's occupancy, other defects in the apartment existed at various times. The toilet had begun leaking in the summer of 1969, causing foul odors, requiring the tenant to continually mop the bathroom floor, and requiring her to keep a plastic tub behind the toilet to catch the dripping water. The glass in the tenant's front door never fitted properly and allowed a constant draft to enter the apartment. The linoleum in the kitchen failed to provide a continuous water repellent surface. On several occasions, the tenant informed the landlord's manager of the defective toilet and front door.

Had the tenant hired a contractor to repair these defects, the cost to her would have been over $300. Her sole source of income from November 1, 1969 to April 1, 1970, was an Aid to Families with Dependent Children (AFDC) grant of $172 per month for her two minor children and an Aid to the Totally Disabled (ATD) grant of $158 per month for herself. During this period, she actively looked for other housing for herself and her children in the Richmond-San Pablo area but was unsuccessful because of the scarcity of units available to low-income persons in that area. The affidavit of Kenneth H. Smith, City Manager of Richmond, showed an estimate of only 40 standard vacant units available to low-income people, and that the Housing Authority had over 400 applicants on its waiting list for these units.

On February 5, 1970, the day after her son fell in the bathroom, the tenant informed the landlord's manager that she would pay the $20 she owed on her January rent and the February rent only after the landlord made proper repairs.

On or about February 8, 1970, the landlord's manager covered the hole in the bathroom with the end of a wooden orange crate. The orange crate end was not covered with linoleum and was not level with the linoleum covering the rest of the floor. On March 1, the tenant tripped on the lip of the linoleum surrounding the orange crate end and again fell.

The next day, on March 2, 1970, the tenant requested the Conservation Section of the City of Richmond to conduct an inspection of her apartment. On March 3, Conservation Representative Levy conducted the requested inspection and confirmed the defects in the bathroom (the floor and toilet), the kitchen, the front door, and found that these defects constituted violations of the Housing Code of the City of Richmond.

The tenant refused to pay the $20 due on her January rent, the $90 February rent, and the $90 March rent, a total of $200. On March 12, the landlord served on the tenant a Three-Day Notice to Pay Rent or Quit.

On March 20, the tenant filed this action in the superior court, alleging the above facts. The tenant requested that the landlord be enjoined from filing any eviction action based on non-payment of rent during the pendency of the action and prayed for a declaratory judgment that the tenant is obliged to pay her full rent only after the landlord complies with his duty to substantially obey the housing codes. The landlord was served with the complaint and an order to show cause on March 26.

On March 24, Conservation Representative Levy wrote a letter to the landlord stating his findings of the defects. The landlord received this letter on March 25. On March 28, 1970, the landlord's manager made the repairs. He replaced the toilet and installed new linoleum in the bathroom, replaced the window in the front door, and installed new linoleum in the kitchen. On March 31, Conservation Representative Levy again inspected the premises. This time, he found them to be in substantial compliance with the Housing Code of the City of Richmond.

On April 21, the landlord and the tenant filed a Stipulation wherein they agreed that, during the pendency of this action, the landlord would not attempt to evict the tenant for nonpayment of the $200 withheld rent, and that the tenant would resume making her regular monthly rent payments as of April 1, 1970.

The court entered its Findings of Fact and Conclusions of Law following the default of the landlord. The court decided that this was a proper case for declaratory relief in that 'there exists a controversy as to the rights and duties of the parties under a written agreement and regarding their specific obligations and rights over or upon property.' The court held that the City of Richmond Building Code and the State Housing Law were enacted for the protection of the life, health, safety and property of the general public and owners and occupants of places of habitation; that the premises occupied by the tenant contained defects which constituted substantial violations of the Richmond Building Code from November 1, 1969 to April 1, 1970; and that these defects were not caused by the tenant. The court, however, held that the tenant had no legal or equitable right to unilaterally withhold rent and judgment was entered in favor of the landlord. The appeal is from the judgment.

Was the lease agreement an illegal contract which is void and unenforceable?

The rationale of the illegal contract theory was set forth in Shephard v. Lerner (1960) 182 Cal.App.2d 746, 6 Cal.Rptr. 433. In that case, both parties knew that numerous violations of the municipal code and State Housing Act existed in the hotel-apartment which was the subject of the lease. The trial court found that because the lease was knowingly made by both parties to continue hotel and apartment use in contravention of the local ordinances and state statutes, the parties were In pari delicto; and since the contract was for an illegal purpose, no enforceable duties or rights could arise. The landlord was therefore prohibited from collecting rent. After discussing several similar cases, the court explained the reason for the rule: 'In these cases, the underlying transactions involved a violation of law and the courts considered them to be against public policy. The rule does not rest upon considerations of justice between the parties but on the principle that public policy requires that certain transactions be discouraged. The same policy considerations apply with equal force to contracts that involve a violation of valid regulations designed to promote public health and safety.' (182 Cal.App.2d at 750--751, 6 Cal.Rptr. at 435).

Similar to Shephard was Howell v. City of Hamburg Co. (1913) 165 Cal. 172, 131 P. 130, in which local fire ordinances prohibited the construction of a wood frame and corrugated iron building. The court declined to enforce the lease against the tenant, even after he had lived there for several years, holding that because the lease contemplated the construction of a building in violation of local law, the agreement 'was founded upon an unlawful consideration, and . . . the entire contract was therefore void and unenforceable.' (Id. at 176, 131 P. at 132.)

The District of Columbia Court of Appeals has extended these principles into the area of present-day landlord-tenant relationships. In the case of Brown v. Southall Realty Company (1968) 237 A.2d 834, the landlord brought an action for possession against tenant, alleging nonpayment of rent in the amount of $230. The tenant contended, however, that no rent was due because the lease was an illegal contract, since the premises contained numerous violations of the housing codes. The court relied on several sections of the District of Columbia Housing Code which forbade a landlord from renting the premises if they are in violation of the Code, and stated that where the conditions constituting a violation exist on a leasehold prior to an agreement to lease, the Housing Code implies a prohibition so as to render the prohibited act void. ¹ (Id. at 837.)

In the instant case, unlike Brown, the defects which constituted the violations of the housing codes developed during the period of occupancy. In Shephard and in most of the illegal contract cases, both parties knew of and willingly acquiesced in the illegality, distinguishing those cases from the present case in which the tenant did not acquiesce in the existence and maintenance of the illegal condition. Furthermore, the housing code violations did not exist prior to the execution of the lease; and apparently at the inception of the lease, with the minor exception noted above, the premises conformed to code and no illegality existed.

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