March 7, 1963 —
April 2, 1963.
APPEAL from a judgment of the county court of Milwaukee county: HERBERT A. SCHULTZ, Judge. Modified and, as modified, affirmed.
For the appellant there were briefs by Becker, Kinnel, Doucette Mattison of Milwaukee, and oral argument by Carl R. Becker.
For the respondent there was a brief by Emil W. Hokanson, attorney, and Hayes Hayes of counsel, all of Milwaukee, and oral argument by Mr. Hokanson and Mr. Hanlin J. Hayes.
Action by Paul Schaaf, the owner of certain premises in Milwaukee, against Raymond Nortman, to recover rent due under a lease of an apartment.
The lease called for a total rent of $9,000, and ran from June 15, 1960, to June 14, 1962. Rent was payable $375 per month, in advance, on the 15th of the month. The lease contained the following provisions:
"1. Lessor shall furnish to lessee hot water and a reasonable amount of heat at reasonable hours from the 1st day of October until the 31st day of May of the succeeding year, when required by the season. Lessor shall not be liable for any failure, not due to lessor's negligence, to supply hot water and heat.
"Heat, light, electric stove, refrigerator, carpeting, caretaker, gardener included.
"5. Said lessee has examined and knows the condition of said premises and appliances and equipment thereto belonging and has found same to be in good order and acceptable and lessee hereby waives any objections to the condition of the premises and equipment."
Mr. Nortman decided in early November, 1960, to purchase a home, and did so on November 18th. Schaaf lived in Florida and the Marshall Ilsley bank was his agent for collection of rent. On November 12th, Nortman wrote the bank stating that servants' quarters were to have been provided, but this had not been done; that accordingly he was deducting $360 ($60 per month) from the rent, and inclosed a check for $15 for the balance. No other complaint was made in the letter.
About November 15th, Mr. Becker, Schaaf's attorney, telephoned Nortman that the payment was not acceptable. Nortman told Becker he was going to move about February 1st. Schaaf asked a real-estate firm to attempt to rent the apartment, saying Nortman was under lease, but Schaaf was willing to co-operate. No new tenant was secured.
On March 29, 1961, after his new home had been redecorated, Nortman moved out of the rented apartment, and so notified Schaaf by letter. His letter includes the following:
"I consider this lease having been broken many months ago because of the misrepresentations and deceit used in getting my wife and myself to sign said lease, because of lack of performance on the part of the lessor, and because of violations of the city code also on the part of the lessor. A complete list of itemized grievances will follow shortly."
Schaaf brought action on April 26, 1961, for rent then unpaid, accrued since November 15, 1960. Nortman answered, alleging fraud, and that he had been ordered out of the premises by the city building inspector, and counterclaimed for $3,000, for mental pain and suffering and various expenses.
After trial to the court, findings of fact and conclusions of law were filed. Paragraph 5 of the findings read as follows:
"I find the complaints of the defendant regarding the facilities of the apartment and the services substantiated by the evidence in the following particulars: I find that the heat on occasions was turned on late, and that hot water was not always available; there was a failure in the operation of the refrigerator, and in the operation of the bathroom space heater; there were no storm windows; sand appeared in the bath water on occasions; the kitchen-range operation was unsatisfactory to the defendant; the light switch controlling the entrance hallway was poorly situated and required defendant to enter the hallway five or six feet to engage the switch; the front-entrance light frequently was unlit early in the evening; within the south wall of the hall between the kitchen and the powder room was located a steam heating pipe which frequently got very hot and overheated the hallway; there was no ceiling light in the hallway going into the rear bedroom, a distance of approximately 14 feet; the shutoff valve for the steam radiator in the master bedroom was located under the radiator making its operation difficult and exposing the operator to burning of hand; the electric power was shut off on one occasion without notice to defendant, to effect wiring changes in the apartment building causing some spoilage of food in defendant's freezer."
There was also a reference to Nortman's conversation with Mr. Becker in November and a finding that,
". . . during this telephone conversation, defendant complained to plaintiff's attorney about the facilities of the leased premises and the services, and advised plaintiff's attorney that he would move out of the apartment."
The court also found that the premises had remained unrented notwithstanding diligent effort by Schaaf to rent them.
The court concluded that Nortman had been constructively evicted, but was indebted for rent to the date he vacated the premises. Judgment in favor of Schaaf for $1,672.50, together with $69.60 interest, and $209.76 costs was entered February 28, 1962. Schaaf appealed.
Further facts will be referred to in the opinion.
The issue on appeal is whether the findings made by the county court support its conclusion that defendant Nortman was constructively evicted.
Certain general principles must be applied.
"It is now well established that any disturbance of the tenant's possession by the landlord, or someone acting under his authority, which renders the premises unfit for occupancy for the purposes for which they were demised or which deprives the tenant of the beneficial enjoyment of the premises, causing him to abandon them, amounts to a constructive eviction, provided the tenant abandons the premises within a reasonable time."
32 Am. Jur., Landlord and Tenant, p. 231, sec. 246.
"A mere slight temporary inconvenience to the tenant does not justify him in throwing up his lease. A trivial breach is not sufficient, but the breach must be substantial and of such duration that it can be said that the tenant has been deprived of the full use and enjoyment of the leased property for a material period of time. . . .
"The landlord is entitled to notice . . . and has a reasonable time after notice is given to remedy the defect complained of, and until such time has elapsed the tenant has no right to quit the premises because of the alleged breach."
Northwestern Realty Co. v. Hardy (1915), 160 Wis. 324, 326, 151 N.W. 791. See Rapacz, Origin and Evolution of Constructive Eviction in the United States, 1 De Paul Law Review (1951), 69.
Paragraph 5 of the findings is a list of deficiencies found to have existed. Several, relating to the location of switches and valves, involve conditions which existed when Nortman, after twice inspecting the premises, entered into the lease. They were open to observation, and were not of great materiality in any event.
Several other items are inconveniences which occurred once, such as the shutting off of electric power for a proper purpose, but without notice. The evidence discloses that when the refrigerator failed, it was repaired.
All the items appear to have been temporary or trivial or both with the possible exception of deficiencies of heat and hot water. In those respects the finding was "that the heat on occasions was turned on late, and that hot water was not always available."
Mr. Nortman testified that the caretaker worked a night shift and slept late in the morning, and on a number of occasions after cold weather started, the apartment remained cold until late in the morning. It was uncomfortably cold, although he could not tell what the temperatures were except that it dropped substantially below 70 "a lot more than a dozen times." There was no testimony explaining the control the caretaker had over the provision of heat, except for the caretaker's testimony that the stoker was controlled by a thermostat which was always set at 75 degrees during the winters months. The thermostat was in the hall, the coldest place in the building.
Mr. Nortman testified generally that there was not hot water at all times. On cross-examination he was unable to say how frequently this occurred, except that it happened irregularly and more than once a month. Apparently he considered the tanks of insufficient size for the number of persons in the building.
This court has stated that under an agreement to furnish heat in a city apartment,
". . . the tenant is entitled to sufficient heat to make the apartment generally comfortable to dwell in for ordinary men, women, and children. That there may be lapses from such a condition owing to the severity and sudden changes of our climate, to occasional inattention on the part of the janitor, to necessary repairs of the heating apparatus, or other excusable causes, without constituting an eviction, is well settled."
Harper v. McMahon (1918), 167 Wis. 388, 390, 167 N.W. 431.
This court approved a trial court determination of constructive eviction by failure to furnish heat in the Harper Case. There, however, the facts proved included the substantially insufficient temperatures experienced and the fact that the condition occurred during the morning and afternoon of almost every day.
We conclude that the occasional lack of heat and hot water as found by the court in this case is not of sufficient severity or frequency to say that Nortman was deprived of the full use and enjoyment of the leased property for a material period of time. It seems most unlikely that any deficiency as to heat had anything to do with Mr. Nortman's decision to move.
"We first became interested in buying a home when we realized that it was impossible to live anymore under the conditions we had to live in Mr. Schaaf's apartment and that it would be a horrendous undertaking in a construction way for him to rectify the things that had to be rectified . . . I would say it was the first part of November."
Although Mr. Nortman testified in very general terms that he had repeatedly complained to the caretaker about deficiencies, and had complained to Schaaf about some of them during the summer of 1960 when Schaaf was in Milwaukee, there was a conflict in testimony on this issue. The only finding made by the court as to notice related to Nortman's conversation with Schaaf's attorney about November 15th. All that the evidence shows about that conversation is that Nortman told Becker he had bought a home and was going to move about February 1st. If it may be inferred that he must have expressed dissatisfaction with the leased premises, there is nothing to indicate the matters of which he complained other than the lack of servants' quarters about which he had written the bank.
If defendant had legitimate serious complaints about the premises or the services provided, there appears to be no reason why he would not have made them specifically to the bank, the attorney, or Mr. Schaaf. In a similar case we have held that notice of such complaints should be given to the agents to whom rent was paid rather than to the janitor. The findings do not show that Nortman gave Schaaf notice and a reasonable opportunity to correct deficiencies even if the deficiencies were substantial enough to constitute constructive eviction if not remedied.
Northwestern Realty Co. v. Hardy, supra, footnote 2, p. 328.
The county court allowed unpaid rental to April 1, 1961, interest thereon, and costs. The trial began December 7, 1961. The judgment should have included unpaid rental to December 1st, and interest thereon, without prejudice to any right Schaaf might have to recover in a later action unpaid rentals beginning December 1st. Rent for the period from April 1st to December 1st amounts to $3,000. Interest on those instalments to date of judgment amounts to $81.12. The judgment is to be increased by adding those amounts.
By the Court. — Judgment modified by adding the sum of $3,081.12 and, as so modified, affirmed.
WILKIE, J., took no part.
Mr. Nortman, the tenant, testified that with the onset of cold weather the premises were cold until late in the morning, and that the room temperature dropped substantially below 70 degrees. He testified that this "happened a lot more than a dozen times."
There is nothing inherently incredible about this testimony. In our opinion, this supported the judge's finding of fact "that the heat on occasions was turned on late." This finding is not against the great weight and clear preponderance of the evidence. The absence of sufficient heat could reasonably be found to have deprived the tenant of the full use and enjoyment of the property. It supports the trial court's conclusion of law that there was a constructive eviction.
We, therefore, would affirm without the modification made by the majority.