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believed the furnished house to be habitable if it is found as a fact that it is not so (Charsley v. Jones, , 53, J. P. 280).
In Il'ilson v. Finch-Hatton, Kelly, C.B., seems to have based his judgment partly upon the brevity of the tenancy of a furnished house, and Bacon, V.C. (in Powell v. Chester, [1885), 52. L. T. 723), stated that shortness of term was the only ground and authority for the decision in Smith v. llarrable. But it has rightly been submitted that duration has nothing to do with the distinction (see Hart v. Windsor; Sutton v. Temple), which is really based upon common sense, although, no doubt, the premises being furnished and the landlord receiving a much higher rent in consequence, may have unconsciously played some part in producing the first judgment upon the subject. It has been further suggested that the distinction should have been held good, if for no other reason than that an unfurnished house is more easily inspected than a furnished house. But the contrary was inferred in Sutton v. Temple, and the answer is obvious, namely, that the warranty is implied whether you inspect or not; and there are, as pointed out above, many defects not open to superficial inspection, and not discoverable till rain or time reveal them. Probably, as previously observed, the mysterious difference in the application of rules of common sense is due to the artificial distinction between real and personal property.
There are two further points to notice with regard to this exception in favour of furnished houses or apartments. The exception does not apply to the letting of a house only partly furnished (Powell v. Chester), but no reason for such restriction is given, which is purely arbitrary. And further, it has been held that the implied warranty as to the letting of furnished houses only applies to the condition of the premises at the commencement of the
term (llaclean v.Currie, [1884.] C.& E. 361; Sarson v. Roberts, (1895), 2 Q. B. 395). It was said in the latter case that to extend this warranty so as to make it apply to the condition of the house during the whole of the tenancy would not be reasonable. The landlord, knowing the purpose for which the tenant is hiring the house, must be taken to warrant its being reasonably fit for such purpose at the time of letting; but, it is said, to go beyond that would be to put the landlord in a different position—for he might be at a distance and know nothing of its state, and the conditions might arise through causes wholly unknown to him, and beyond his control. Was ever an argument more at a loss for reason? What has the landlord's absence or presence, knowledge or ignorance of condition to do with it?
According to this reasoning, the warranty comes to this. If a furnisned house becomes uninhabitable at the end of the first week of the
tenancy through some cause not actually existing at the first day of the tenancy, then the tenant can neither quit the premises and refuse to pay rent, nor have a right of action for any damage through injury sustained, or expense incurred. No action, no remedy, no relief. If the same principle and argument were applied to an ocean-bound vessel what absurdities would appear. Observe, it might be said the ship-owner only warrants the condition of the ship as being seaworthy when it leaves port; if anything should get loose and give way in mid-ocean, he cannot be responsible for that. Why nat? Because he may be (and very probably is) too far away and unable to inspect it, or know anything about it; it might be wholly beyond his control. Suppose a vendor of food says to a dissatisfied purchaser, the goods were fit when you bought them an hour ago; I cannot help the fresh air working upon them and making them unfit an hour later. You should have eaten them all
at once, and not kept them for an hour. The hirer of a trap complains, in the middle of the hiring, that the trap has suddenly collapsed-and is met with the answer, it was all right when it was first hired, and that the hirer could not expect the owner to be running about with him to see if it was still sound during the whole of the term of hiring.
Yet, equally ridiculous is this suggestion that the landlord's liability is restricted to the initial condition of the premises. The premises are required to be fit for habitation the whole of the term during which they are used for that purpose, and not for mere fractions of the term.
Indeed, it may be submitted that the right view of every letting of dwelling-houses is that incidentally expressed in Sutton v. Temple (p. 60) :-“If a carriage be let for hire, and it breaks down on the journey, the letter of it is liable, and not the party who hires it. So, if a party hire anything else of the nature of goods and chattels, can it be said that he is not to be furnished with proper goods-such as are fit to be used for the purpose intended ? Undoubtedly the party furnishing the goods is bound to furnish that which is fit to be used. In every point of view the nature of the contract is such that an obligation is imposed upon the party letting for hire to furnish that which is proper for the hirer's accommodation. It is manifest from cases of everyday occurrence that such is the law. Common sense and common justice concur in that conclusión."
For the benefit of a particular class of people, an amendment to the common law has been found “expedient” and necessary with regard to the letting and hiring of small unfurnished tenements.
The enactment was first instituted in 1885 by a statute
entitled “The Housing of the Working Classes Act," which was in part repealed by a consolidating and amending Act in 1890, but this latter statute, by sec. 75, re-enacted one section (sec. 14) of the former Act, which runs in the following terms :
“In any contract made after the 14th day of August, 1885, for letting for habitation by persons of the working classes a house or part of a house, there shall be implied a condition that the house is at the commencement of the holding in all respects reasonably fit for human habitation. In this section the expression ‘letting for habitation by persons of the working classes' means the letting for habitation of a house or part of a house at a rent not exceeding in England the sum named as the limit for the composition of rates by sec. 3 of the Poor Rate Assessment and
Collection Act, 1869, and in Scotland or Ireland £4." This works out at a rent limited in London to £20, in Liverpool £13, in Manchester or Birmingham £10, and elsewhere in England £8.
The smallest concessions to common sense are always acceptable; it is a proper thing that the poorest people should have some amelioration to their otherwise hard lot.
But why the condition implied in their favour should be withheld from the rest of the community is a question hopelessly without a reasonable answer. It is but one of the many instances of the patch-work, partial way in which we legislate.
So much for the matter of condition, &c., of the premises. Arising out of this is the subject of general repairs, and that of rebuiiding or re-instating the premises in case of destruction or partial demolition by fire, flood, storm or other similar events wholly beyond the control of either party, and in no way attributable to misconduct by the tenant. There is an implied obligation at common law
on the part of the tenant to do proper repairs ; to keep the premises wind and water tight. The curious fact is that a tenant is impliedly obliged to keep a house in repair (which it is submitted should be impliedly the landlord's duty), but the tenant is not liable, apart from express agreement, for mere
and tear of the premises (Torriano v. Young. (1833.] 6 C. & P. 8).
And while the tenant is not liable to rebuild in case of destruction by fire, flood, &c., neither is the landlord—but the tenant is obliged to go on paying his rent although the subject-matter of his contract has ceased to exist, independently of his conduct. Of course, it will be said he may insure against fire, and perhaps against some other probable causes of destruction, and he may expressly contract himself out of liability to continue paying rent during the time he may be out of occupation, which is true. But the point is that independently of this express contract, his obligation continues--and it is submitted that this is contrary to common sense, and the principles of the ordinary law of contract.
It is equally unreasonable that where a landlord covenants to do repairs and does not do them, the tenant cannot refuse to pay his rent, nor can he do the repairs himself and deduct the amount from his rent, nor may he throw up the premises and contract ; but he is generally driven to his action on the covenant, during the process of which he and his family are obliged to suffer the inconvenience usually resulting from dilapidation or disrepair.
It is needless to pursue this subject to any greater length or into any further details.
Reaching down from a time when things were arbitrarily done, without rhyme or reason, to our own times when, with the enormous populations of our towns, individuals are more and more in the hands of the holders of the land, and owners of the houses built thereon, it