Kline v. Burns

• Decision Date: 05 April 1971
• Docket Number: No. 6051,6051
• Parties: Samuel KLINE et al., d/b/a G. & S. Realty v. Martin R. BURNS. Samuel KLINE, d/b/a G. & S. Realty v. Fred DAGGETT. Martin R. BURNS v. Samuel KLINE.
• Court: New Hampshire Supreme Court

Page 248

276 A.2d 248

111 N.H. 87

Samuel KLINE et al., d/b/a G. & S. Realty v. Martin R. BURNS.

Samuel KLINE, d/b/a G. & S. Realty v. Fred DAGGETT.

Martin R. BURNS v. Samuel KLINE.

No. 6051.

Supreme Court of New Hampshire.

April 5, 1971.

Shaines, Madrigan & McEachern and Craig E. Turner, Portsmouth (Turner orally), for Samuel Kline and Gertrude Kline d/b/a G. & S. Realty and Samuel Kline individually.

Boynton, Waldron & Dill and Nicholas R. Aeschliman, Portsmouth (Aeschliman orally), for Martin Burns and Fred Daggett.

John R. Maher, Portsmouth and Gerald McGonigle, Nashua, N.H., of So. N.H. Legal Services Assn., Inc., as amicus curiae for Martin Burns and Fred Daggett.

LAMPRON, Justice.

Martin R. Burns, occupying premises at 26 Tanner Court in Portsmouth, instituted an action against Samuel Kline to recover all rent paid during occupancy of the premises on the ground that the rental was in violation of the city housing code. Portsmouth Code of Ordinances (July 1968) Ch. 14. Samuel and Gertrude Kline then brought actions for possession under RSA 540:12, 540:13-540:14 (supp.) against Burns at 26 Tanner Court and against Fred Daggett at 28 Tanner Court. The Klines also brought actions against them to recover unpaid rent for these premises. The five actions were tried together.

Trial of all actions before Alvin E. Taylor, Esq., Special Justice, who made certain findings, rulings, and the following orders. The motion to dismiss Burns' action against Samuel Kline to recover rent paid was granted. Judgment for plaintiffs Klines in both possessory actions. Verdicts for plaintiffs in the amount of $150 in the actions for unpaid rent brought against each defendant, Burns and Daggett.

The judgments for plaintiffs Klines in the possessory actions are not in issue on this appeal and stand as ordered by the trial court. The exceptions of defendants Burns and Daggett to the court's refusal to set aside the verdicts in favor of the Klines for unpaid rent; and Burns' exception to the granting of defendant's motion to dismiss his action to recover all rents paid to Kline during his tenancy are the only issues to be considered.

The trial court found that the premises at 28 Tanner Court were rented to Daggett during the month of August 1968 for an agreed rental of $50 per month and those at 26 Tanner Court were rented to Burns about December 1, 1968 at the same rental. 'Due to the oral nature of the leasing it is evident that a tenancy at will was created.' 'Rent for the months of August, September, and October, 1969 remain unpaid. The Building Inspector for the City, together with the Electrical Inspector, conducted a joint inspection of both premises in February, 1969 and found certain violations of the Building Code, some of which had existed for a long period of time. Neither could testify, however, as to the condition of the premises at the time of the original tenancy. It seems clear that at that time both premises contained certain defects, the exact nature and extent of which are in dispute. It is also clear to the Court that by February 1969 there were definite violations of the Building Code and that the plaintiff landlords were put on notice of those violations.'

The court also found that 'although there were certain violations of the Building Code * * * these are not determinative of the rights of the parties. It seems clear from the testimony that if violations existed at the time of the original tenancy that the defendant tenants had equal knowledge of at least obvious defects * * *. Both tenants possessed the option of either (1) not entering into the tenancy, or (2) vacating when latent defects became known. Further, neither tenant made known the complaints of the conditions of the premises, and most of the defects complained of were discovered by routine inspection procedures of City officials. The proper action for enforcing the ordinance rests with the City officials and once their attention was directed to the violations, it was their duty to act * * *. It has long been the general rule of law that, absent an agreement to repair, the tenant may not refuse to pay rent because of the landlord's failure to repair. * * * It is the Court's opinion that, in the absence of statute or ordinance, they cannot continue to occupy the premises rent-free.

'Although there is conflicting testimony, the landlords at some time subsequent to receiving official notification of violations expressed the intent to have the buildings demolished.' 'The Court is not unmindful of the situation faced by defendant tenants in attempting to procure living quarters * * *.'

It is evident from the above findings and rulings that the trial court's verdicts for the landlords for unpaid rent, and the dismissal of tenant Burns' action to recover the rent paid during his tenancy because the premises did not comply with the housing code, were based on the following common law principles governing the rights and duties of landlords and tenants which still prevail in this jurisdiction. 'There is no warranty implied in the ordinary contract of letting that the premises are reasonably safe or suitable for the uses intended.' Marston v. Andler, 80 N.H. 564, 122 A. 329 (1923). The only duty the law imposes on a landlord for the benefit of his tenants, insofar as the leased premises are concerned, is a limited duty not to deceive the tenants as to the dangers incident to their use of which the landlord knows and they do not. Black v. Fiandaca, 98 N.H. 33, 35, 93 A.2d 663, 665 (1953). In other words, the 'rule of cavant emptor applies the same as between buyer and seller.' Towne v. Thompson, 68 N.H. 317, 319, 44 A. 492, 493 (1895). The landlord is under no legal duty to repair the leased premises unless he is so obligated by the express terms of the tenancy. Hunkins v. Amoskeag Mfg. Company, 86 N.H. 356, 357, 169 A. 3, 4 (1933); Busick v. Home Owners Loan Corporation, 91 N.H. 257, 18 A.2d 190 (1941). The landlord's breach of an express covenant to repair does not excuse, nor is it a defense to, the failure of the tenant to pay rent. Meridith Mechanic Association v. American Twist Drill Company, 67 N.H. 450, 451, 39 A. 330, 331 (1893).

The briefs submitted on behalf of Burns and Daggett take the position that the trial court erred in ruling that violations of the housing code by the landlords were not determinative of the rights of the parties. the doctrine of caveat emptor by which the the code was a contractual obligation of the landlords to the tenants and that their obligation to pay rent was dependent on the landlords' performance of their obligation. They maintain also that the common-law principles of landlord and tenant relied on by the trial court; that is, (1) the doctrine of vaveat emptor by which the tenants take the premises as they are in the absence of fraudulent concealment of defects; (2) the lack of duty on the landlords to keep the premises in repair; (3) the absence of mutual dependency between the obligations of the landlords and those of the tenants, are all remnants of an ancient feudal system and anachronisms in our present society. See 1 American Law of Property s. 3.78 (1952); 44 Denver L.J. 387 (1967); 5 Suffolk U.L.Rev. 213, 215 (1970).

Under the tenurial system a lease was considered primarily as a conveyance of lands for a certain term or at will. 2 Blackstone Commentaries 317 (5th ed. 1773); 1 Tiffany, Real Property s. 74 (3d ed. 1939). The tenant was considered both an owner and occupier in order to provide him with the remedies with which to protect his interest against the landlord and others. Id. ss. 95-98; 1 American Law of Property s. 3.11 (1952); 35 N.Y.U.L.Rev. 1279 (1960). Furthermore, in the agrarian society then existing, the value of the lease to the tenant was the land itself which would often yield the rent. 3 Tiffany, supra s. 876; 37 Univ.Chi.L.Rev. 798, 799 (1970). Also the buildings on the land were mostly incidental to the lease. They were constructed simply without modern conveniences and could be easily kept in repair by the tenant. Because the lease was primarily a conveyance of land, the covenants of the parties were considered to be mutually independent of each other. 6 Williston, Contracts s. 890, at 586-89 (3d ed. W.H.E. Jaeger 1962).

Nowadays the value to the tenant of his lease of an apartment is not in the land itself, but rather, in the right to enjoy the building thereon as a place in which to live. He is more concerned with habitability than with the possibility of the landlord's interference with his possession. Keeping the apartment in a livable state is much more complex and costly than it was in the agrarian society which gave birth to the feudal system and the ensuing common law of landlord and tenant. 1 American Law of Property s. 3.78, at 347 (1952). The importance of a lease of an apartment today is not to create a tenurial relationship between the parties, but rather, to arrange the leasing of a habitable dwelling. Lemle v. Breeden, 51 Hawaii 426, 429, 462 P.2d 470, 472 (1969); Javins v. First Nat'l Realty Corp., 138 U.S.App.D.C. 369, 428 F.2d 1071, 1074 (1970); Marini v. Ireland, 56 N.J. 130, 144, 265 A.2d 526, 532 (1970); 2 Powell, Real Property s. 221(1), at 179 (1967).

Our legislature, like those of many other states, recognized the need and desirability of insuring adequate housing by adopting legislation granting to municipalities the power to establish and enforce minimum standards for use and occupancy of dwellings. Laws 1959, ch. 293 (now RSA ch. 48-A (supp.)). See Pines v. Perssion, 14 Wis.2d 590, 595, 111 N.W.2d 409, 412 (1961); A. B. Foundation, Model Residential Landlord-Tenant Code (Tent. Draft 1969). The city of Portsmouth adopted the housing code involved in this case under the authority of RSA 48-A (supp.). Portsmouth Code of Ordinances ch. 14. In order to help insure the desired adequate housing, '(c)ourts have a duty to reappraise old...