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covery by the lessor during the term that a drain from the house was leaky which he was under no obligation to repair, and of which he did not inform the tenant, was held not to render the lessor liable in damages to the tenant, though it was alleged that the death of a member of the tenant's family from typhoid fever resulted from this leak in the drain, in that the deceased was infected thereby (9).
§ 53. Same: In control of lessor. The lessor is not excused from liability to his tenants for injuries resulting from dangerous conditions maintained on his own premises even by binding the tenants to keep their premises in repair, as where a tenant in covenant to keep his rooms in repair was injured by the explosion of the heating apparatus in the possession of the landlord in his basement (10). The same is true of parts of the premises used in common by tenants of property (passageways, stairs, etc.) but controlled by lessor. See $ 55, below.
§ 54. Lessor's liability for repairs and improvements. In the absence of statute or promise in the lease the landlord is not bound to make repairs or improvements, or to make good loss or injury suffered from want of them. In an action by a tenant against a landlord for damages to his goods, from failure of the landlord to make repairs promised after the lease was made in order to induce the tenant not to leave the building, the court said: “In the lease of a store or warehouse, there is no implied warranty that the building is safe, well built, or fit for any
(9) Bertie v. Flagg, 161 Mass. 504. (10) Ralton v. Taylor, 20 R. I. 279.
particular use. So, in a lease of a house there is none that it is reasonably fit for habitation.
Nor is it implied that it shall continue fit for the purpose for which it is demised, as the tenant can neither maintain an action, nor is he exonerated from the payment of rent if the house is blown down or destroyed by fire, or the occupation rendered impracticable by the act of God or the king's enemies. When it is agreed that the landlord shall do the repairs, there is no implied condition that the tenant may quit if the repairs are not done.
In the absence of any special agreement, the tenant takes the risk as to the future condition of the premises leased. The tenant takes the premises for better and for worse, and cannot involve the landlord in expense for repairs without his consent.
It is not in proof that the premises were out of repair when the tenant entered upon their occupation. The landlord, being under no obligation to make repairs, promised the tenant who was under such obligation to make them. The promise was without consideration. It was no part of the original agreement. It was made while the tenant was occupying the premises. The action cannot be maintained” (11).
8 55. Same: Appurtenances under lessor's control. To the rule that the landlord is under no obligation to repair there is an exception in the case of appurtenances not in the exclusive possession of the tenant. For example: “The plaintiff was a tenant of the defendants,
(11) Libbey v. Talford, 48 Me. 316. But see Ehinger v. Bahl, 208 Pa. St. 199, holding lessor liable for injury to goods from fall of house after notice and promise to repair, the lease being from month to month.
occupying an apartment in a building owned by them in Jersey City. There were several apartments in the building, and these were separately rented out by defendants to different families. The halls and stairways of the building were used in common by several tenants. While descending one of these stairways the plaintiff stumbled and fell, sustaining personal injuries. This action was brought to recover compensation therefor from the landlords, upon the ground that the plaintiff's fall was due to the bad condition of the stair covering.
In this state it is established as a general rule that the landlord is not liable for injuries sustained by a tenant or his family or guests by reason of the ruinous condition of the premises demised, there being upon the letting of the house or lands no implied contract or condition that the premises are or shall be fit and suitable for the use of the tenants. But it is recognized that this rule does not apply to those portions of his property (such as passageways, stairways, and the like) that are not demised to the tenant, but are retained in the possession or control of the landlord for the common use of the tenants and those having lawful occasion to visit them, the ways being used as appurtenant to the premises demised. With respect to such ways, it has been held by our supreme court that the landlord is under the responsibility of a general owner of real estate who holds out an invitation to others to enter upon and use his property, and is bound to see that reasonable care is exercised to have the passageways and stairways reasonably fit and safe for the uses which he has invited others to make of them. This doctrine, we think, is undoubtedly sound. It is in nowise opposed to the rule which exempts the landlord from liability for the condition of the premises demised, but is plainly distinguishable therefrom” (12).
Where the landlord has given over the whole premises, part to one tenant and part to another, the rule laid down in the above case does not apply; and he is not liable to any of the tenants for any defect in any part of the premises not amounting to a nuisance, in the absence of contract concerning it with the complaining party (13).
$ 56. Same: Statutory liability. In California a statute was enacted, which has been substantially copied in Montana, Oklahoma, North Dakota, South Dakota, and probably other western states, providing that a lessor of buildings intended for the occupation of human beings must, in the absence of agreement to the contrary, put them in condition fit for occupation and repair all subsequent dilapidations not due to the tenant's negligence; and if he fails to do so within a reasonable time after notice the tenant may repair and deduct the same from the next month's rent or vacate and be discharged from further rent. It has been held that these statutes are not applicable to any buildings other than residences, and that the landlord cannot be charged with repairs made without demand and notice to him, nor will abandonment for want of repairs excuse the tenant from the payment of rent unless he has given notice to the landlord and a
(12) Siggins v. McGill, 72 N. J. L. 263. (13) Kearines v, Gullen, 183 Mass. 298.
reasonable opportunity to repair (14). Under a somewhat similar statute in Georgia it was held that damage to goods, which might have been prevented by reasonable diligence by the tenant, could not be deducted from the rent in an action on a distress warrant, though resulting from the landlord's failure to repair (15).
8 57. Lessor's right to enter to make repairs. In the absence of covenant to repair or right reserved in the lease to the landlord to make them, he has no right to enter on the demised premises during the term to make repairs without the previous consent of the tenant to his doing so, and the tenant may sue him for the trespass and avail himself of the benefits of the repairs without paying any extra compensation; and even a covenant to repair or a right reserved to enter to make repairs would not excuse the landlord from an action for trespass for entering and making extensive betterments or alterations further than were necessary to keep them in the condition in which they were at the time the lease was made. A covenant to repair, or a statute imposing that duty on the landlord excuses him from liability as a trespasser in making entry for that purpose; but the fact that the premises are in an unsafe condition, for which the landlord would not become liable, would be no excuse for entry; and even the order of the public building inspector to make it safe or tear it down would not justify any further interference with the possession of the tenant
(14) Tucker v. Bennett, 15 Okla. 187.