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definite and settled points of law with regard to the letting of houses, namely, the questions of (1) habitability at the commencement and throughout the term, and (2) damage arising through defect in, or dilapidation of the premises. As the law stands at present, independently of express warranty, condition, or covenant, a landlord who lets a house for purposes of habitation is :
(1) Not liable for its condition, whether ruinous, dangerous, or otherwise unfit for domestic use.
(2) Not liable for any damage suffered by the tenant to his person or goods, or to any one who enters the house at the invitation of the tenant.
With regard to the first point, the law has been stated clearly and repeatedly.
Let us look at the language of some of these authorities.
In Hart v. Windsor (1843, 12 M. & W.68) in answer to a claim for rent it was pleaded that the premises were not fit for habitation, by reason of their being infested with vermin.
Parke, B., in his judgment (p. 85 et seq.) says :
“The simple question is, what is the implied obligation on the part of the landlord to his tenant, under a lease of a house for years?
“There is no authority for saying that these words (' demise,' and • let') imply a contract for any particular state of the property at the time of the demise ; and there are many, which clearly show that there is no implied contract that the property 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 demised is blown down, or destroyed by fire; or gained upon by the sea ;
or the occupation rendered impracticable by the King's enemies; or where a wharf demised was swept away by the Thames. In all these cases,
the estate of the lessor continues, and that is all the lessor impliedly warrants.
. We are all of the opinion that there is no contract, still less a
condition, implied by law on the demise of real property only, that it is fit for the purpose for which it is let. The principles of the common law do not warrant such a position ; and though, in the case of a dwelling-house taken for habitation, there is no apparent injustice in inferring a contract of this nature, the same rule must apply to land taken for other purposes-for building upon, or for cultivation; and there would be no limit to the inconvenience which would ensue. It is much better to leave parties in every case to protect their interests themselves, by proper stipulations, and if they really mean a lease to be void by reason of any unfitness in the subject for the purpose intended, they should express that meaning.”
Judgment upon the same basis and to the same effect, with regard to a demise of land for pasturing cattle, was pronounced in the case of Sutton v. Temple ([1843.] 12 M. & W. 52). And these are the two leading authorities upon the subject of fitness at the commencement of the letting.
Now, what is the ground upon which these judgments proceed? Shortly this, it has never been held that a landlord is liable, therefore he is not liable—which is no reason at all. It is true the learned judge thought there might be “no apparent injustice” in implying a warranty of fitness in the case of a dwelling-house; but he speedily repents that lapse into common-sense by suggesting that that would be but the thin edge of the wedge, and would be (with reason, surely) applied to the letting of land, and then where would it end. His obvious answer is, in inconvenience, which may be admitted. It might be inconvenient to the landlord, or lessor, that he should have thrown back upon his hands property which is worthless to the tenant or lessee, and which the latter would never have taken had he known its condition-inconvenient, clearly, but not unjust. It might be inconvenient for the landlord, or lessor, to have to pay damages for a breach of implied warranty that his field was fit for being depastured by cattle, whereas it contained poisonous refuse
paint which killed the cattle-inconvenient, but not unjust, nor unreasonable.
It is considered neither unjust nor unreasonable that a person who lets a carriage to hire should be called upon to compensate the hirer for injury sustained in consequence of the carriage breaking down. It is not held to be unjust that goods sold for human consumption should be impliedly warranted fit for that purpose. But it is argued that before taking a farm or house the intending tenant should go and see the state it is in (Erskine v. Adeane. [1873.] 42 L. J. Ch. 835), and if he neglect to do so he must still take it as he finds it ; although, if land, it be manured with poisonous substance, or not free from noxious plants; and although, if a house, it may be ruinous, uninhabitable, or dangerous. True, it is reasonable that the intending tenant should inspect, but does that answer all? There are many things which render a house unfit for habitation, or grossly inconvenient and uncomfortable, but which are not visible or apparent upon inspection. No one may always tell whether the roof is water-tight, or secure by a mere casual inspection. A house needs to be dwelt in in order to discover whether it is inhabitable. You may inspect immediately after ceilings have been whitewashed, walls papered, and slates repaired-it needs an attack of wind and rain to test the tightness and security of a roof. One does not wait for these before inspecting or entering. The storm comes afterwards. But why should it be more incumbent upon a tenant previously to inspect a house admittedly let and intended for habitation, than for the hirer of a ship to inspect it before putting out to sea ? The law says the ship must be seaworthy. Again, it is said in the judgment of Hart v. Windsor, it is best to leave the parties to make express terms. Which means, why not ask the landlord expressly
Hart v, Windsor, supra; Keates v. E. Cadogan, [1851.) 20 L. J. C. P. 76 Bartram v, Aldous, (1886.] 2 T, L, R. 237.
to warrant? The answer is, he is human like the rest of us and does not wish to bind himself to anything (except the rent), and immediately the question is put he thinks
undesirable” tenant and refuses to contract. The land is in the hands of the landowners, and the landless man has to live somewhere. A dwelling-house is a necessity, the hiring of which he cannot afford to dally with or delay in obtaining. And, surely, “ fitness for habition" ought not in reason to be left to an express warranty or stipulation, any more than “fitness for human food." Why should it all be in favour of the landlord and to the frequent loss and inconvenience of the tenant? The answer is one given with all the ostentation of profound learning and incomparable nonsense. It is this, the house is the subject of real property, the letting is of a chattel real! There is the clue to the mystery.
If the purchaser of a pound of butter or a joint of beef suffers in direct consequence of the said goods not being fit for food, he has his remedy against even an innocent vendor, but if a tenant enters and his goods are spoilt next day by rain and ceiling falling upon them owing to a leaky roof, he must bear it bravely. He ought to have tapped every slate before he took the house, or he ought to have expressly agreed with the landlord that in such event the landlord would compensate him for the damage. For is not the house real property?
But it will be said that not all goods sold are subject to an implied warranty of " fitness for purpose." Truly not but in many instances the same goods have a variety of uses, and it would be manifestly unfair to impose upon each vendor the duty of warranting their fitness for a purpose unknown to him. But in so far as goods are manifestly required for a specific purpose, the tendency of the law is to import a warranty as to their fitness therefor; in so far as the law does not do so, it is submitted that such defect
or inconsistency is not an argument against importing a warranty of “fitness for habitation" into every letting of a house intended for dwelling in, but rather a matter which calls urgently for amendment.
The general rule of law being such that there is no implied warranty as to fitness of a house for habitation, it is strange to read that an exception is made when the letting is of the same house plus the furniture in it. That is to say, in letting a furnished house, the lessor impliedly warrants and promises that the house and furniture are fit for occupation. So it was held in Smith v. Marrable ( 11. M. & W.5), in which case a tenant for five or six weeks was held justified in quitting without notice, because the house was infested with bugs. The distinction between a furnished and unfurnished house was not expressly drawn in this case, though the term “ready furnished ” is used by Lord Abinger, who says that “no authorities are wanted, and that the case is one which common sense alone enables us to decide.” The other three judges made no allusion to the house being furnished, but based their judgmentupon two cases (Edwardsv.Etherington, [1825.] Ry. & M. 268; Collins v. Barrow, [1831.] 1. M. & Rob. 112, subsequently overruled) and upon the general principle that if the demised premises are incumbered with a nuisance of so serious a nature, e.g., unsafe and dilapidated walls, improper sewerage, that no person can reasonably be expected to live in them, the tenant should be at liberty to throw them up, because the landlord should be taken to let them in a habitable state.
The decision in Smith v. Marrable was approved of in the later case of IV'ilson v. Finch-Hatton ( [1877),L.R. 2 Ex. D 336), where the principle was held applicable to defective drainage, and since has been applied to a case of infection by measles (Bird v. Lord Grevile (1884), 1. C. & E. 317). Nor is it any excuse on the part of the landlord that he honestly