This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
In Tennessee it has been stated that the lessor is liable if by the exercise of reasonable care and diligence he could have knowledge of the dangerous condition. Stenberg v. Willcox, 96 Tenn. 163, 34 L. R. A. 615, 33 S. W. 97; however, not peculiar to tenancies for years, and will be more conveniently considered in a future part of this work.65
- (c) Repairs. The tenant is, by some authorities, under an obligation to the landlord to make repairs, the failure to do which is termed "permissive" waste.66 This obligation apparently grows out of the duty of the tenant, above mentioned, to return the premises in the condition in which he received them, and consequently he is bound to keep them wind and water tight, so that further injury may not result.67 He is not however, bound to make repairs of a substantial nature, involving the substitution of new structures, or parts thereof, for old, though these latter be defective and worn out through age.68
An express covenant by the lessee to repair requires him to make repairs even in case of injury to the premises by third persons without his fault.69 And by force of such a covenant he is bound to restore a buildWillcox v. Hines, 100 Tenn. 538, 41 L. R A. 278, 66 Am. St. Rep. 770, 46 S. W. 297. But perhaps by this the court means merely that if he has reason to suspect the existence of such a condition he must exercise reasonable diligence to satisfy himself that it is nonexistent before leasing. In Mesher v. Osborne, 75 Wash. 439, 48 L. R. A. (N. S.) 917, 134 Pac. 1092, it appears to be thought that the existence of a covenant to repair in the instrument of lease involves an obligation upon the lessor to look for defects in the premises before executing the lease, a somewhat singular view.
In Louisana the lessor apparently is under an obligation to discover defects. Allain v. Frigola, 140 La. 982, 74 So. 404.
65. Post Sec.Sec. 279-291.
66. Post Sec. 286.
67. See Co. Litt. 53a. Suydam v. Jackson, 54 N. Y. 450.
68. Long v. Fitzsimmons, 1 Watts & S. 530; Suydam v. Jackson, 54 N. Y. 450.
69. Polack v. Pioche, 35 Cal. 416, 95 Am. Dec. 115; Leavitt v. Fletcher, 10 Allen (Mass). 119; Breach v. Crain, 2 N. Y. 86, 87, 49 Am. Dec. 369.
Even when accidentally destroyed70 as by fire.71 A covenant by the lessee to leave the premsies at the end of the term in the same condition as at the time of demise has been given the same effect,72 though occasionally a different view has been taken as to a covenant of the latter character.73
The landlord is under no obligation whatever to the tenant to keep the leased premises in repair, in the absence of an express stipulation binding him so to do.74
70. Brecknock & Abergavenny Canal Nav. Co. v. Pritchard, 6 Term R. 750; Polack v. Pioche, 35 Cal. 416, 95 Am. Dec. 115; Proctor v. Keith, 12 B. Mon. 252; Leavitt v. Fletcher, 10 Allen (Mass.) 119; Moses v. Old Dominion Iron & Nail Works Co., 75 Va. 95. But as to destruction by the act of God or a public enemy, see Pollard v. Shaffer, 1 Dall. (Pa.) 210 and dicta in Halbut v. Forrest City, 34 Ark. 246; Singleton v. Carroll, 6 J. J. Marsh. (Ky.) 527, 528, 22 Am. Dec. 95; Hoy v. Holt, 81 Pa. St. 88, 36 Am. Rep. 659.
71. Bullock v. Dommitt, 6 Term R. 650; Nave v. Berry, 22 Ala. 382; Ely v. Ely, 80 111. 532; David v. Ryan, 47 Iowa 642; Phillips v. Stevens, 16 Mass. 238; Fowler & Moore v. Payne, 49 Miss. 32, 76; Allen v. Culver, 3 Denio (N. Y.) 284; Gettysburg Elec. Ry. Co. v. Electric Light, Heat & Power Co., 200 Pa. 372, 49 Atl. 952; Cline v. Black, 4 Mc-Cord (S. C.) 431; Armstrong v. Maybee, 17 Wash. 24, 61 Am. St. Rep. 898, 48 Pac. 737; Contra, Wattles v. South Omaha Ice & Coal Co., 50 Neb. 251, 36 L. R. A. 424, 61 Am. St. Rep. 554, 69 N. W. 785.
72. Pym v. Blackburn, 3 Ves. Jr. 34; Schmidt v. Pettit, 8 D. C. (1 Mac Arthur) 179; Phillips v. Stevens, 16 Mass. 238; Stevens v. Pantlind, 95 Mich. 145, 54 N. W. 716 (semble); Pasteur v. Jones, 1 N. C. 393; Priest v. Foster, 69 Vt. 417, 38 Atl. 78; Armstrong v. May-bee, 17 Wash. 24, 61 Am. St. Rep. 898, 48 Pac. 737.
73. Warren v. Wagner, 75 Ala. 188, 51 Am. Rep. 446; Junction Min. Co. v. Springfield Junct. Coal Co., 222 111. 600, 78 N. E. 902, aff'g 122 111. App. 574; Wainscott v. Silvers, 15 Ind. 497, 500; Levey v. Dyess, 51 Miss. 501; Miller v. Morris, 55 Tex. 412, 40 Am. Rep. 814.
74. Arden v. Pullen, 10 Mees. & W. 321; Viterbo v. Friedlander, 120 U. S. 707, 30 L. Ed. 776; Little Rock Ice Co. v. Consumer's Ice Co., 114 Ark. 532, 170 S. W. 241; Savings & Loan Soc. v. Gerichten, 64 Cal. 520, 2 Pac. 405; Spicer v. Machetti, 59 Colo. 214, 147 Pac. 657; Borggard v. Gale, 205 111 511, 68 N. E. 1063; Hopkins v. Ratliff, 115 Ind. 213, 17 N. E. 288; Gregor v. Cady, 82 Me. 131, 17 Am. St. Rep. 466, 19 Atl. 108; Cramer v. Baugher, 130 Md. 212, 100 Atl. 507; Kearines v. Cullen, 183 Mass. 298, 67 N. E. 243; Petz v. Voight
- (d) Injuries from defective condition. Since the tenant is bound to inspect beforehand, and is subject to the rule of caveat emptor, and the landlord owes no duty to repair, the latter is, in general, not liable for injuries to the tenant or his property resulting from the construction or condition of the demised premises.75 This rule is, however, subject to the exception referred to above, in regard to hidden defects existing at the time of the lease, of which the lessor, knowing thereof, is bound to inform the lessee.76
- Effect of covenant to repair. There are quite a number of decisions to the effect that the landlord is liable for damage to the person or property of the tenant which would have been avoided had the landlord complied with his covenant to repair.77 There are
Brewery Co., 116 Mich. 418, 72 Am. St. Rep. 531, 74 N. W. 651; Krue-ger v. Ferrant, 29 Minn. 385, 43 Am. Rep. 233, 13 N. W. 158; Glenn v. Hill, 210 Mo. 291, 16 L. R. A. (N. S.) 699, 109 S. W. 27; Landt v. Schneider, 31 Mont. 15, 77 Pac 307; Jaffe v. Harteau, 56 N. Y. 398, 15 Am. Rep. 438; Smithfield Improvement Co. v. Coley-Bardin, 156 N. C. 255, 36 L. R. A. (N. S.) 907, 72 S. E. 312; Moore v. Weber,