Teller v. McCoy, No. CC900

CourtSupreme Court of West Virginia
Writing for the CourtMcGRAW; NEELY; MILLER
Citation162 W.Va. 367,253 S.E.2d 114
PartiesJudy TELLER and Barbara Hager v. Martin McCOY.
Decision Date12 December 1978
Docket NumberNo. CC900

Page 114

253 S.E.2d 114
162 W.Va. 367
Judy TELLER and Barbara Hager
v.
Martin McCOY.
No. CC900.
Supreme Court of Appeals of West Virginia.
Decided Dec. 12, 1978.
Opinion Concurring in Part and Dissenting in Part Jan. 30, 1979.
Opinion Concurring in Part and Dissenting in Part Feb. 21, 1979.

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Syllabus by the Court

1. There is, in a written or oral lease of residential premises, an implied warranty that the landlord shall at the commencement of a tenancy deliver the dwelling unit and surrounding premises in a fit and habitable condition and shall thereafter maintain the leased property in such condition.

2. Since a lease of a residential dwelling is to be treated as a contract, the covenant to pay rent is dependent upon the premises being habitable. The tenants duty to pay rent is dependent upon the landlord's fulfillment of the implied warranty of habitability.

3. Breach of the implied warranty of habitability may constitute a defense to an action for unlawful detainer or to an action for rent or damages brought by the landlord.

[162 W.Va. 368] 4. If a landlord breaches the implied warranty of habitability, the tenant may vacate the premises thereby terminating his obligation to pay rent or may continue to pay rent and bring his own action or counterclaim later to recover damages caused by the breach.

5. When the warranty of habitability is breached, the tenant's damages are measured by the difference between the fair market value of the premises if they had been so warranted and the fair rental value

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of the premises as they were during the occupancy by the tenant in the unsafe and unsanitary condition. However, the tenant may additionally recover damages for annoyance and inconvenience proven to have resulted from the breach.

6. The trial court, after determining that a fact question exists as to a breach of warranty of habitability, may, during the pendency of the action, require the tenant in possession to make future rent payments or part thereof into an escrow account as they become due, but only in limited circumstances, only on motion of the landlord, and only after notice and opportunity for a hearing on such a motion.

7. Waiver of the implied warranty of habitability is prohibited as against public policy.

Roxanne Rogers, Elkview, Daniel F. Hedges, Charleston, for plaintiffs.

Bailey & Parks, Thomas R. Parks, Logan, for defendant.

McGRAW, Justice:

This proceeding is before us on certified question. Pursuant to W.Va. Code § 58-5-2, the Circuit Court of Logan County, West Virginia, certified to this Court the [162 W.Va. 369] following questions of law upon the joint motion of the plaintiffs and defendant, after first denying plaintiffs' motions for "partial summary judgment and judgment on the pleadings":

1. Whether failure of a landlord to maintain rental premises in a habitable condition and otherwise remedy defects to the premises which render the residence uninhabitable is in violation of a landlord's implied warranty of habitability to a tenant? And if so, whether it is subject to waiver?

2. Whether a landlord's warranty of habitability and the tenant's covenant to pay rent are mutually dependent?

3. Whether failure of a landlord to maintain the premises in habitable condition constitutes a failure of consideration and a breach of the rental agreement?

4. Whether a landlord's breach allows to the tenant one or more of the following remedies: (a) a right of action or setoff for the difference between the agreed rent and the fair rental value of the premises in their defective condition; (b) after reasonable notice and opportunity to a landlord to correct the defective conditions, to repair the defects himself and deduct the repair cost from the rent; and (c) vacation of the premises terminating a tenant's obligation to pay rent? (d) what damages, if any, are recoverable by the landlord or tenant in the event of breach of either party.

5. Whether a breach of the implied warranty of habitability is a defense to a landlord's action for rent, damages, or unlawful detainer?

I

At common law, a lease for real estate was considered a conveyance or sale of an estate in land for a term. 2 R. Powell, The Law of Real Property § 221(1) (Rohan ed. 1977). A burden of inspection was placed upon the tenant and "(f) raud apart, there (was) no law against letting[162 W.Va. 370] a tumble-down house." Robbins v. Jones, 15 C.B.N.S. 221, 240, 143 Eng.Rep. 768, 776 (1863). 1 The only way that a tenant at common law could assure the fitness of a leasehold was by exacting an express covenant from the landlord that the property was to be fit for the purpose intended. Cowan v. One Hour Valet, Inc., 151 W.Va. 941, 157 S.E.2d 843 (1967); Lennox v. White, 133 W.Va. 1, 54 S.E.2d 8 (1949); Redden v. McCreery, 123 W.Va. 367, 15 S.E.2d 150 (1941); Charlow v. Blankenship, 80 W.Va. 200, 92 S.E. 318 (1917); Kline v. McLain, 33 W.Va. 32, 10 S.E. 11 (1889); Arbenz v. Exley, 52 W.Va.

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476, 44 S.E. 149 (1903). Absent a statute to the contrary, it was uniformly held that there was no implied warranty of habitability or fitness for the purpose leased. Clifton v. Montague, 40 W.Va. 207, 21 S.E. 858 (1895); See Wilkinson v. Searls, 155 W.Va. 475, 184 S.E.2d 735 (1971); 1 American Law of Property § 3.45 (Casner ed. 1952); 2 R. Powell, The Law of Real Property § 225 (Rohan ed. 1977); 3 Holdsworth, A History of English Law, 122-23 (5th ed. 1966). "The common law focused on possessions rather than service. The ideal landlord delivered possession, then did nothing more; the ideal tenant paid his rent and demanded nothing more than possession." Note, 56 Cornell L.Rev. 489, 490 (1971).

The acceptance of such rules in this state, as well as in most American common law jurisdiction, is exemplified by syllabus point 1 of Charlow v. Blankenship, supra, which provides:

There is no implied covenant upon the part of the landlord in a lease that the premises are tenantable or reasonably suitable for occupation. In the absence of fraud or concealment by the lessor of the condition of the property at the date of the lease, the rule of caveat emptor applies.

[162 W.Va. 371] These rules developed out of an agrarian economy beginning in the Middle Ages at a time when the land, not the simple buildings and fixtures, was the focal point of the transaction. The right to possession of the land was the chief element of the exchange. The rent was deemed to issue from the land itself "without reference to the condition of the buildings or structures upon it." Hart v. Windsor, 12 M. & W. 68, 81, 52 Eng.Rep. 1114, 1119 (1843). Thus, the rent was due even if the buildings were not habitable or fit for occupancy. 2 2 F. Pollock & F. Maitland, The History of English Law 131 (2d ed. 1923). This strict application of caveat emptor was consistent with the agrarian social setting under which the leasehold interests were created. It was accepted that the small, simple structures affixed to realty would be repaired by the farmer-tenant. 3 The condition of such premises normally was as readily apparent to the prospective tenant as it was to the landlord. Latent defects were not likely to exist due to the lack of the complicated, often imperceptible,[162 W.Va. 372] modern refinements that characterize residential structures today. See the excellent historical discussion in Green v. Superior Court, 10 Cal.3d 616, 111 Cal.Rptr. 704, 517 P.2d 1168 (1974) (en banc).

But as society evolved, so did the setting under which the common law landlord-tenant relationship existed. English and American courts began to relax somewhat the settled common law rules. 4 The courts,

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recognizing that some tenants primarily seek living quarters and not land, implied a warranty of habitability into short-term leases of furnished dwellings. Smith v. Marrable, 11 M. & W. 5, 152 Eng.Rep. 693 (Ex.1843); Ingalls v. Hobbs, 156 Mass. 348, 31 N.E. 286 (1892); 5 Young v. Povich, 121 Me. 141, 116 A. 26 (1922); Pines v. Perssion, 14 Wis.2d 590, 111 N.W.2d 409 (1961). Where the lease was for an apartment or room that later was totally destroyed by [162 W.Va. 373] fire, the courts discharged the tenant from future rent, again recognizing that the tenant's true object in such cases was not land, but a place to live. Graves v. Berdan, 26 N.Y. 498 (1863); See Arbenz v. Exley, 52 W.Va. 476, 44 S.E. 149 (1903) & W.Va.Code § 37-6-28. And where a lease, restricting the lessee to a particular use, was accepted before the premises were completely constructed or altered, the courts made an exception to the no-implied warranty rule. See, e. g., Woolford v. Electric Appliances Co., 24 Cal.App.2d 385, 75 P.2d 112 (1938); J. D. Young Corp. v. McClintic, 26 S.W.2d 460 (Tex.Civ.App.1930), Rev's on other grounds, 66 S.W.2d 676 (Tex.Comm'n App.1933); Hardman Estate v. McNair, 61 Wash. 74, 111 P. 1059 (1910). A further historical adjustment to the no-repair rule occurred when the establishment of "a well recognized exception," Weaver Mercantile Co. v. Thurmond, 68 W.Va. 530, 70 S.E. 126 (1911), concerning premises used in common or remaining under the landlord's control. Charlow v. Blankenship, supra. "(T)he law imposes on a landlord the duty to exercise ordinary care to maintain in reasonably safe condition, premises owned by him and used in common by different tenants . . . the duty arises from the tenancy . . ." syl. pt. 1, Marsh v. Riley, 118 W.Va. 52, 188 S.E. 748 (1936); Accord, Lennox v. White, 133 W.Va. 1, 54 S.E.2d 8 (1949); syl. pt. 2, Barker v. Withers, 141 W.Va. 713, 92 S.E.2d 705 (1956).

At common law the lease was a conveyance of possession of real property for a term. The covenants in a lease were deemed to be independent, not dependent. Thus the duty of a tenant in possession to pay rent was accepted as essentially absolute. See, e. g., King v. Moorehead, 495 S.W.2d 65 (Mo.Ct.App.1973). But the courts implied into leases a "covenant of quiet enjoyment" to...

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49 practice notes
  • Dawson v. Kendrick, Civ. A. No. 78-1076.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • August 10, 1981
    ...promulgated in 1976 adopt the National Fire Code and the National Building Code, with some added provisions. In Teller v. McCoy, 253 S.E.2d 114, 120 (W.Va.1978), the West Virginia Supreme Court of Appeals recognized that these regulations have the force and effect of state law. As such, the......
  • State ex rel. Dunlap v. Berger, No. 30035.
    • United States
    • Supreme Court of West Virginia
    • June 13, 2002
    ...of our law's disfavoring of exculpatory provisions in adhesion contracts that derogate public rights may be found in Teller v. McCoy, 162 W.Va. 367, 253 S.E.2d 114 (1978), where this Court held that in residential housing leases, the waiver of the implied warranty of habitability is prohibi......
  • State v. Sutherland, No. 11–0799.
    • United States
    • Supreme Court of West Virginia
    • June 5, 2013
    ...envisage the law should be but must limit themselves to rulings in the context of a justiciable case or controversy.” Teller v. McCoy, 162 W.Va. 367, 396–97, 253 S.E.2d 114, 131 (1978) (Neely, J., concurring, in part, and dissenting, in part). By creating law that does not have any effect o......
  • De Stefano v. Apts. Downtown, Inc., No. 14–0820.
    • United States
    • United States State Supreme Court of Iowa
    • May 6, 2016
    ...appear”); Foisy, 515 P.2d at 164–65 (rejecting bargaining between landlord and disadvantaged tenant over habitability); Teller v. McCoy, 162 W.Va. 367, 253 S.E.2d 114, 130–31 (1978) (holding waivers of warranty are against public policy); see Shelby D. Green, Paradoxes, Parallels and Fictio......
  • Request a trial to view additional results
49 cases
  • Dawson v. Kendrick, Civ. A. No. 78-1076.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • August 10, 1981
    ...promulgated in 1976 adopt the National Fire Code and the National Building Code, with some added provisions. In Teller v. McCoy, 253 S.E.2d 114, 120 (W.Va.1978), the West Virginia Supreme Court of Appeals recognized that these regulations have the force and effect of state law. As such, the......
  • State ex rel. Dunlap v. Berger, No. 30035.
    • United States
    • Supreme Court of West Virginia
    • June 13, 2002
    ...of our law's disfavoring of exculpatory provisions in adhesion contracts that derogate public rights may be found in Teller v. McCoy, 162 W.Va. 367, 253 S.E.2d 114 (1978), where this Court held that in residential housing leases, the waiver of the implied warranty of habitability is prohibi......
  • State v. Sutherland, No. 11–0799.
    • United States
    • Supreme Court of West Virginia
    • June 5, 2013
    ...envisage the law should be but must limit themselves to rulings in the context of a justiciable case or controversy.” Teller v. McCoy, 162 W.Va. 367, 396–97, 253 S.E.2d 114, 131 (1978) (Neely, J., concurring, in part, and dissenting, in part). By creating law that does not have any effect o......
  • De Stefano v. Apts. Downtown, Inc., No. 14–0820.
    • United States
    • United States State Supreme Court of Iowa
    • May 6, 2016
    ...appear”); Foisy, 515 P.2d at 164–65 (rejecting bargaining between landlord and disadvantaged tenant over habitability); Teller v. McCoy, 162 W.Va. 367, 253 S.E.2d 114, 130–31 (1978) (holding waivers of warranty are against public policy); see Shelby D. Green, Paradoxes, Parallels and Fictio......
  • Request a trial to view additional results

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