Mease v. Fox

• Citation: 200 N.W.2d 791
• Decision Date: 19 September 1972
• Docket Number: No. 55027,55027
• Parties: Quentin R. MEASE by W. Lawrence Oliver, Agent, Appellee, v. David FOX and Josephine Fox, Appellants.
• Court: United States State Supreme Court of Iowa

Page 791

200 N.W.2d 791

Quentin R. MEASE by W. Lawrence Oliver, Agent, Appellee, v. David FOX and Josephine Fox, Appellants.

No. 55027.

Supreme Court of Iowa.

Sept. 19, 1972.

L. Vern Robinson, Des Moines, for appellants.

W. Lawrence Oliver, Des Moines, for appellee.

REYNOLDSON, Justice.

Plaintiff landlord brought this action in Des Moines municipal court to recover three months' rent from defendant tenants, who had vacated the leased home. Defendants' answer denied their default on the rental contract and that plaintiff owned the claim. By later amendments, defendants affirmatively alleged the house when leased was in a state of disrepair and violated the municipal housing code and that plaintiff violated his duty (upon renting the premises for occupancy by human beings) to repair promptly and correct all conditions which rendered the premises unsafe, unsanitary or otherwise untenantable. Defendants further alleged plaintiff was notified of these housing code violations in 1968, in June 1970 one tenant was struck by the falling bathroom ceiling, a city housing inspector then made up a notice of violations, the premises were declared to be a public nuisance, and defendants were ordered to vacate. Defendants prayed plaintiff's petition be dismissed. A counterclaim, containing the same and additional allegations, demanded judgment for $1500 rent paid during the tenancy.

Trial court dismissed the counterclaim because it failed to state any cause of action upon which relief could be granted. The affirmative defense was stricken on the court's initiative, apparently for the same reason and for the additional reason (articulated by the court but not advanced or pled by plaintiff) defendants were estopped from complaining about the disrepair without moving or taking corrective action. Trial court directed defendants to proceed on their original answer and cut off offers of proof relating to the action of the city health department as being on a matter not in issue. Foreclosed from offers of evidence relating to the stricken defense and counterclaim, one of the defendant tenants testified on cross-examination the last rent payment was for May 1970, and defendants resided in the house until August 27, 1970. Trial court thereupon directed a plaintiff's verdict for $225. On defendants' appeal we reverse and remand.

Defendants assert trial court erred in striking the counterclaim and affirmative defense alleging plaintiff breached a contractual obligation warranting the leased premises to be habitable. Plaintiff does not dispute defendants' theory of their pleadings but relies solely on the rule the tenant takes the demised premises as he finds them, and that between lessor and lessee the doctrine of caveat emptor ordinarily applies.

I. At common law the real estate lease took nurture and growth in the field of real property law, not contract law. In property law the lease was regarded as a conveyance of an estate for a term. The contract concept of mutually dependent promises, developing later, had little impact on the landlord-tenant relationship. Leases, elaborately conceived and drafted, were commonly supposed to express the full intent of the parties. Incorporated covenants were held to be mutually independent unless in terms expressly conditional. 6 Williston on Contracts § 890, pp. 580--91 (3d ed. 1962); Lesar, Landlord and Tenant Reform, 35 N.Y.U.L.Rev. 1279 (1960). The rents were considered as issuing from the land, through the tenant as a conduit. 2 F. Pollock & F. Maitland, The History of English Law 131 (2d ed. 1923).

In the agrarian setting of the Middle Ages, with main emphasis on the land conveyance aspect of the lease, there evolved (out of the 'waste' doctrine) the concept absolving the landlord of all obligation to repair. 3 W. Holdsworth, A History of English Law 122--23 (6th ed. 1934). That era's simple buildings were of secondary importance and readily repairable by the occupying tenant. The tenant became the owner and occupier for the lease term, and with respect to the condition of the premises, subject to the ancient doctrine of caveat emptor. There was no implied warranty of habitability or fitness for the purpose leased. These rules were generally recognized by common-law jurisdictions, including Iowa. Viterbo v. Friedlander, 120 U.S. 707, 7 S.Ct. 962, 30 L.Ed. 776 (1887); Gamble-Robinson Co. v. Buzzard, 65 F.2d 950 (8 Cir. 1933); Fetters v. City of Des Moines, 260 Iowa 490, 149 N.W.2d 815 (1967); 49 Am.Jur.2d, Landlord and Tenant § 768, pp. 705--06; 52 C.J.S., Landlord and Tenant § 423(3), p. 165. Although though deeply embedded, these common-law concepts increasingly lost viability in the era of industrialization with its attendant exploding urban population and housing. The modern city tenant has little interest in the land. He seeks a combination of living space, utilities, facilities, and services suitable for occupation.

Recoiling from the harsh result of the rule's application in an urban setting, courts first evolved exceptions, some conceived in logic, others in fiction. The covenant--frequently implied rather than expressed--of quiet enjoyment with the concomitant remedies based on constructive eviction furnished one escape. Boyer v. Commercial Bldg. Inv. Co., 110 Iowa 491, 81 N.W. 720 (1900); 2 Powell on Real Property § 225(3), pp. 232--40 (Rohan ed. 1971). Iowa, and many other jurisdictions, devised exceptions grounded on partially retained control by landlord of defective common ways and elevators (Stupka v. Scheidel, 244 Iowa 442, 56 N.W.2d 874 (1953)), of common facilities furnished with multiple housing (Primus v. Bellevue Apartments, 241 Iowa 1055, 44 N.W.2d 347 (1950)), and of individual apartments with respect to utilities furnished (Hutchinson v. Des Moines Housing Corporation, 248 Iowa 1121, 84 N.W.2d 10 (1957)).

Still other exceptions were created, imposing warranty of habitability or fitness in the case of furnished houses (Ingalls v. Hobbs, 156 Mass. 348, 31 N.E. 286 (1892); 1 American Law of Property § 3.45, pp. 267--68 (Casner ed. 1952)), premises not yet built (Markman v. Hoefer, 252 Iowa 118, 106 N.W.2d 59 (1960); Swift v. The East Waterloo Hotel Co., 40 Iowa 322 (1875)), and other situations involving short term leases (Gibson v. Shelby County Fair Ass'n, 241 Iowa 1349, 44 N.W.2d 362 (1950)). A related rule evolved, imposing on the landlord an obligation to disclose unsafe conditions known to him and not known to or discoverable by the tenant. Wright v. Peterson, 259 Iowa 1239, 146 N.W.2d 617 (1966); 49 Am.Jur.2d, Landlord and Tenant § 767, p. 705; 52 C.J.S., Landlord and Tenant § 417(3), p. 37.

Although such cases blunted the impact of the outmoded doctrine in limited situations, it continued to be attacked by a host of legal writers advancing the reality of an implied warranty of habitability and fitness. Lesar, Landlord and Tenant Reform, 35 N.Y.U.L.Rev. 1279 (1960); Moskovitz, Rent Withholding and the Implied Warranty of Habitability--Some New Breakthroughs, 4 Clearinghouse Rev. 49 (1970); Skillern, Implied Warranties in Leases: The Need for Change, 44 Denver L.J. 387 (1967); Note, Implied Warranty of Habitability in Housing Leases, 21 Drake L.Rev. 300 (1972); Comment, Implied Warranty of Habitability: An Incipient Trend in the Law of Landlord-Tenant? 40 Fordham L.Rev. 123 (1971); Comment, Implied Warranty of Habitability--Demise of the Traditional Doctrine of Caveat Emptor, 20 DePaul L.Rev. 955 (1971); Comment, Implied Warranty of Habitability in Residential Leases--a Defense to Landlord Eviction Actions, 23 U.Fla.L.Rev. 785 (1971); Comment, Plotting the Long-overdue Death of Caveat Emptor in Leased Housing, 6 U.San Fran.L.Rev. 147 (1971); Comment, Tenant Remedies--the Implied Warranty of Fitness and Habitability, 16 Vill.L.Rev. 710 (1971); 20 Buff.L.Rev. 567 (1971); 39 Geo.Wash.L.Rev. 152 (1970).

The trend of modern decisions adopting an implied warranty concept is grounded, in part, on a felt need to re-assess the real as opposed to theoretical meaning of a lease:

'There is a clearly discernible tendency on the part of the courts to cast aside the technicalities in the interpretation of leases and to concentrate their attention, as in the case of other contracts, on the intention of the parties, * * *.'

6 Williston on Contracts § 890A, pp. 592--93 (3d ed. 1962).

Discernible also in the current decisions is the tendency to narrow application of the caveat emptor rule. This court has noted and followed this lead in extending the doctrine of implied warranty in the sale of personalty. Drager v. Carlson Hybrid Corn Co., 244 Iowa 78, 56 N.W.2d 18 (1952). We have said the doctrine of caveat emptor is no longer the polestar for business. Syester v. Banta, 257 Iowa 613, 133 N.W.2d 666 (1965).

In 1961 the Wisconsin Supreme Court invoked an implied warranty of habitability to render judgment against a landlord for the tenants' deposit and labor performed on the premises. While the dwelling leased was to be furnished, language in Pines v. Perssion, 14 Wis.2d 590, 596, 111 N.W.2d 409, 412--413 went beyond the furnished dwelling exception:

'To follow the old rule of no implied warranty of habitability in leases would, in our opinion, be inconsistent with the current legislative policy concerning housing standards. The need and social desirability of adequate housing for people in this era of rapid population increases is too important to be rebuffed by that obnoxious legal cliche , Caveat emptor. Permitting landlords to rent 'tumbledown' houses is at least a contributing cause of such problems as urban blight, juvenile delinquency and high property taxes for conscientious landowners.'

In addition to the above policy considerations, subsequent cases recognized landlord's superior position to know of housing law violations and to discover deficiencies in the premises to be leased. The frequent inequality in bargaining power was acknowledged: where...