King v. Moorehead

Decision Date02 April 1973
Docket NumberNo. 25812,25812
Citation495 S.W.2d 65
PartiesOscar KING, Respondent, v. Marie MOOREHEAD, Appellant.
CourtMissouri Court of Appeals

James L. Muller, The Legal Aid and Defender Society of Greater Kansas City, Inc., Kansas City, for appellant.

None for respondent.



This action was commenced in the magistrate court by a landlord's complaint which alleged that defendant occupied certain premises as a tenant of the plaintiff leased on the 6th day of March, 1969, from month to month at the rate of $85 per month and that the sum of $109 was due plaintiff as rent. The complaint sought judgment for possession and rent in the sum demanded, and the magistrate entered judgment accordingly.

The tenant appealed to the circuit court and filed an answer in which she admitted the lease of the premises for use as a single family dwelling as a month to month tenant of the plaintiff for the agreed rent of $85 per month, that she paid rent through the month ending May 6, 1969, but refused to do so thereafter until plaintiff corrected and abated certain substantial housing code violations, and admitted that she did not vacate the premises until August 1, 1969, when she was finally able to obtain other housing. Defendant then denied indebtedness to plaintiff for any rent for her occupancy from and after May 6, 1969, and as the basis for this denial asserted two affirmative defenses.

The first affirmative defense alleged that the rental agreement was illegal, void and unenforceable because in violation of the Housing Code of Kansas City, Missouri. 1 The defense pleaded as exhibits numerous provisions of the Code, among them, Section 20.16 which renders it unlawful for any person to use or occupy, or for any owner to permit any dwelling unit to be used or occupied, as a place for human habitation unless in compliance with the requirements of the Code, and declaring any building for habitation and which does not conform to the regulations to be a nuisance; and, Section 20.34 which requires the owner of a dwelling to imintain it in good order and repair and fit for human habitation; and, Section 20.10 which renders a violation of the Code a misdemeanor and provides for a fine of not more than $100 for each offense. The defendant also alleged fourteen specific conditions, including rodent and vermin infestation, defective and dangerous electrical wiring, leaking roof, inoperative toilet stool, unsound and unsafe ceilings, which at the time of letting the plaintiff knew or should have known were in violation of the Housing Code and rendered the premises unfit for human habitation. 2 In consequence, the defendant alleged the unenforceability of the rental agreement in the pending action. The second affirmative defense reasserted the allegations of the illegality defense and further alleged that at the time of the letting, plaintiff impliedly convenanted to provide premises in a safe, sanitary and habitable condition, and to so maintain them in compliance with state and local laws, including the provisions of the Housing Code. This defense also alleged that the refusal of the plaintiff to abate the conditions constituting violations of the Housing Code rendered the premises wholly unsuitable for human habitation, was a substantial breach of the implied covenant, and amounted to a failure of consideration on the part of the plaintiff so as to relieve defendant of her obligation to pay rent in whole or in substantial part. 3

The circuit court determined that the defendant's answer admitted occupancy of the premises without payment of the accrued rent for the period alleged in the complaint, and thus failed to state a legal defense to the plaintiff's claim. The court ordered the first and second affirmative defenses stricken and entered judgment for plaintiff for $109 and his costs. The effect of the judgment of the circuit court that the allegations of illegality of lease and breach of an implied warrantly of habitability were not sufficient as legal defenses to the plaintiff's claim for rent was to concede the truth of the facts well pleaded by defendant. We test the propriety of the trial court's judgment in the perspective of that concession. Higday v. Nickolaus, 469 S.W.2d 859, 864(10) (Mo.App.1971).

At early common law, a lease was considered a conveyance of an estate in land and was equivalent to a sale of the premises for the term of the demise. Warner v. Fry, 360 Mo. 496, 228 S.W.2d 729, 730(1) (1950); 2 Powell, The Law of Real Property, § 221(1) at 178. As a purchaser of an estate in land, the tenant was subject to the strict property rule of caveat emptor--let the buyer beware. The lessee's eyes were his bargain. He had the duty to inspect the proper ty for defects and took the land as he found it. '(F)raud apart, there (was) no law against letting a tumble-down house.' Robbins v. Jones, 15 CBNS 221, 143 Eng.Rep. 768, 776 (1863). There was no implied warranty by the lessor that the leased premises were habitable or fit. The common law traditionally assumed that the landlord and tenant were of equal bargaining power. So, if the tenant wished to protect himself as to the fitness of the premises, he could exact an express covenant from the landlord for that purpose. Burnes v. Fuchs, 28 Mo.App. 279, 281 (1887); Griffin v. Freeborn, 181 Mo.App. 203, 168 S.W. 219, 220(1--5) (1914); See also, Landlord and Tenant--Implied Warranty of Habitability--Demise of the Traditional Doctrine of Caveat Emptor, 20 DePaul L.Rev. 955 (1970--1971).

The law of leasehold originated in an era of agrarian economy which assumed that the land was the most important feature of the conveyance. The tenant was only the conduit for the rent which was conceived to issue from the land itself 'without reference to the condition of the buildings or structures on it'. Hart v. Windsor, 12 M & W 68, 152 Eng.Rep. 1114, 1119. If the buildings were not habitable, the rent--which was the quid pro quo of the tenant's possession--was still due from him. 4 Thus, even where the tenant was successful in exacting a covenant that the lessor make repairs, this covenant was considered only incidental to the land and independent of the tenant's covenant to pay rent. 5 Hence a breach by the landlord did not suspend the obligation of rent; the tenant's only remedy was to sue for damages arising from the breach. For all practical purposes, the obligation to pay rent was absolute.

This rule of law where rigorously applied had harsh results. 6 The severity of the rule has been softened by judicially created exceptions which recognize a lease as a conveyance but, in certain circumstances, treat the landlord-tenant relationship as if governed by principles of contract law. Thus, even the earliest common law lease was understood to be 'a contract for title to the estate' and thus to imply a covenant of quiet enjoyment of the demised premises. 7 If the landlord evicts a tenant by physically depriving him of possession, he breaches the implied covenant of quite enjoyment and the obligation of the tenant to pay rent is suspended. Dolph v. Barry, 165 Mo.App. 659, 148 S.W. 196, 198 (1912). The covenant of quiet enjoyment is not only an exception to caveat emptor but also to the doctrine that the covenants of a lease are independent. 8

Upon this exception was built another other exception, the doctrine of constructive eviction. The courts soon came to realize that a tenant's possession and quiet enjoyment could be molested by something less than physical extrusion by the landlord. A constructive eviction arises when the lessor, by wrongful conduct or by the omission of a duty placed upon him in the lease, substantially interferes with the lessee's beneficial enjoyment of the demised premises. Under this doctrine the tenant is allowed to abandon the lease and excuse himself from the obligations of rent because the landlord's conduct, or omission, not only substantially breaches the implied covenant of quiet enjoyment but also 'operates to impair the consideration for the lease'. Dolph v. Barry, 165 Mo.App. 659, 148 S.W. 196, 198(3) (1912). 9 Thus, the first remedy created by the courts to insure habitability, and to exonerate the tenant's obligation for rent under a lease for lack of it, was 'designed to operate as though there were a substantial breach of a material covenant in a bilateral contract'. Lemle v. Breeden, 51 Haw. 426, 462 P.2d 470, 475(5) (1969).

The other significant, but more limited, exception to caveat emptor and the absolute obligation of the tenant to pay rent is the implied warranty of fitness for immediate use as a habitation in cases of furnished dwellings leased for a short period of time. The leading case, Ingalls v. Hobbs, 156 Mass. 348, 31 N.E. 286 (1892) states this principle in gist, l.c. 286:

One who lets for a short time a house provided with all furnishings and appointments for immediate residence may be supposed to contract in reference to a well-understood purpose of the hirer to use it as a habitation. An important part of what the hirer pays for is the opportunity to enjoy it without delay, and without the expense of preparing it for use.

The rationale of Ingalls, and those cases which follow it, can be understood to rest on the contractual principle that the parties intended, and the lessee could reasonably expect, that such premises would be suitable for immediate occupancy without inspection.

Although the early agrarian lease was viewed as a conveyance, the authorities agree that the modern lease is both a conveyance and a contract. 10 With the change from an agricultural to an urban society, the function of the lease has also changed. The land itself, once the central reason for the lease, is of no value to an urban dweller. The minds of the parties to a modern lease...

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