noting Rankin v. Ware, 88 Kan. 23, 127 Pac. 531 [1912]
How later courts described this case
- noting Rankin v. Ware, 88 Kan. 23, 127 Pac. 531 [1912]
Written by the judges who cited it.
The opinion
Fromme, J.,
concurring. With reluctance I join my brothers on this court in what may be called the birth of the implied warranty of habitability in Kansas. However I feel the court in its opinion *337 should have provided more guidelines for the future growth of the newborn law. It should be pointed out as a corollary to Syl. ¶ 9 that not only are the usual remedies for breach of contract available to the lessee in cases of breach but also tire usual defenses may be employed by the lessor in such suits.
It would have been helpful, I feel, for the court in its present opinion to have discussed several troublesome areas which will arise from the grave in which the doctrine of caveat emptor was buried. These areas were mentioned by the Iowa court in Mease v. Fox, 200 N. W. 2d 791 (Iowa), where it was said:
“. . . Important in the trial will be the question whether the deficiencies and defects alleged by defendants [lessees] were latent, and whether these and the claimed housing code violations constituted a material breach of implied warranty, rendering the home unsafe or unsanitary and consequently unfit for occupancy. If it is contended defendants waived the defects or were estopped to claim implied warranty (as indicated by trial court’s ruling), those matters should be affirmatively pled in plaintiff’s [lessor’s] reply. [Citations omitted.]” (p. 798.)
This court should have given immediate consideration to some guideline for the future in determining the extent of the implied warranty of habitability. What are the nature of the defects which should be considered a material breach of the warranty? In the present opinion the court holds that failure to maintain the premises in compliance with standards set by the Wichita Housing Code constitutes a breach of the implied warranty of habitability. The specific defects noted, such as air leakage, broken counter top in the kitchen and loss of tile in the bathroom, do not indicate how substantial such defects must be to constitute a material breach.
To constitute a breach of the implied warranty of habitability the lessee should be required to bring the defects to the attention of the lessor and give him a reasonable time to remedy them. (Berzito v. Gambino, 63 N. J. 460, 308 A. 2d 17 .) The defects should be of such a nature as renders the living quarters unsafe, unsanitary or uninhabitable. Where there has been a material breach of implied warranty of habitability with respect to residential property, tenants damages should be measured by the difference between the fair rental value of the premises if they had been as warranted and the fair rental value of the premises as they were during occupancy by the tenant in the unsafe or unsanitary condition. When a tenant vacates the premises because of the landlord’s breach *338 the condition of the premises should lose its relevance after the vacation for the damages should be determined on the basis of the fair rental value during tire tenant’s occupancy.
Not every defect or inconvenience should be deemed to constitute a breach of covenant of habitability; the condition complained of should be such as truly renders the premises uninhabitable in the eyes of a reasonable person. The following factors have been considered material by other courts in determining whether there has been a material breach of the implied warranty of habitability:
1. the nature of the deficiency or defect,
2. its effect on safety and sanitation,
3. the length of time for which it persisted,
4. the age of the structure,
5. the amount of the rent,
6. whether tenant voluntarily, knowingly and intelligently waived the defects, or is estopped to raise the question of the breach,
7. whether the defects or deficiencies resulted from unusual, abnormal or malicious use by the tenant, and
8. whether the alleged defect would be such as to violate housing laws, regulations or ordinances.
(See Mease v. Fox, supra; Kline v. Burns, 111 N. H. 87, 276 A. 2d 248 ; Marini v. Ireland, 56 N. J. 130, 265 A. 2d 526 .)
The court’s opinion does not speak directly to many of these questions and I realize to do so might be considered dicta, however, some guidelines for the future should be given. Therefore, I join the opinion of the court concurring.