Opinion

Bernstein v. Fernandez

  • 649 A.2d 1064
  • 1991 D.C. App. LEXIS 359
  • 1991 WL 638820
Court
District of Columbia Court of Appeals
Filed
Mar 28, 1991
Status
Published
Author
Rogers
On the bench
Rogers, Belson, Terry
Cited by
77 cases
Authority
More cited than 9.2%

concluding that the tenant’s “evidence of the problems themselves was enough” for the factfinder to “find that the apartment’s ‘as is’ value was zero, thereby allowing a complete abatement of rent”

How later courts described this case

  • concluding that the tenant’s “evidence of the problems themselves was enough” for the factfinder to “find that the apartment’s ‘as is’ value was zero, thereby allowing a complete abatement of rent”
  • adopting Maryland law barring nuisance claims by tenants against landlords and requiring that such claims be raised under theory of negligence; explaining that there is “no reason to expand the scope of District of Columbia landlord-tenant law by importing into it the ‘impenetrable jungle’ of the law of nuisance”
  • holding that evidence of persistent and extreme problems with decaying ceilings and rodent infestation sufficed to allow the jury to find an “as is” value of zero
  • District of Columbia law is “consistent” with Maryland law that “nuisance ordinarily is not a separate tort in itself but a type of damage”

Written by the judges who cited it.

The opinion

ROGERS, Chief Judge,

concurring:

I join the majority opinion and write separately only to make clear that I do not read the majority to conclude that a nuisance claim may never be brought by a tenant against a landlord, but rather, that on the facts of this case, Fernandez failed to meet her burden of proof. See majority opinion at 1073-1074. The Maryland eases cited by the majority are not dispositive. In Little v. Union Trust Co., 45 Md.App. 178, 185 , 412 A.2d 1251, 1255 (1980), the Court of Special Appeals held that a cause of action for public nuisance was not available. In State ex rel. Bohon v. Feldstein, 207 Md. 20, 33 , 113 A.2d 100, 106 , the Court of Appeals held open the possibility of a nuisance claim where the landlord “demise[d] premises which are ... in themselves a nuisance....” Our decision in District of Columbia v. Fowler, 497 A.2d 456 (D.C.1985), addressed only the requirement of prior notice before the District may be held liable for maintaining a nuisance as a result of defective conditions in streets and highways. Moreover, as the majority acknowledges, see majority opinion at 1073 n. 9, a nuisance cause of action has generally been recognized under certain circumstances. *1076 See R. Schoshinski, American Law of Landlord and Tenant § 3.9 (1980 & 1990 Supp.) (and cases cited) (nuisance cause of action may be available where claim is based on conduct in “areas of premises over which the landlord has retained control”).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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