KAMARATH v. BENNETT

Citation Codes

Equivalent Citations

citation codes

Docket Number

No. 5692.

Attorney(S)

Michael M. Daniel and Virginia Paxton, Carol M. Barger, Dallas, for appellant. James H. Martin, Dallas, for appellee. Larry Niemann, Niemann Niemann, Austin, amicus curiae.

See more information ...

Smart Summary

Factual and Procedural Background

Plaintiff-Appellant Wilford Kamarath rented an apartment from Defendant-Appellee C. C. Bennett on March 1, 1975. The premises were located in an approximately seventy-five-year-old two-story brick building. The lease was oral, month-to-month, with rent set at $110 per month and utilities paid by the landlord. Kamarath, an unemployed disabled veteran with a wife and six children, inspected and accepted the premises prior to renting.

Following a complaint by Kamarath, the City of Dallas building inspectors found the premises in violation of minimum housing standards, informing landlord Bennett that repairs were required or the premises would have to be closed. Kamarath ceased paying rent in July 1975, claiming the premises were unfit for habitation, but did not vacate the apartment. Bennett, deeming repairs too costly, opted to close the building and gave notice to tenants to vacate. Kamarath refused to leave and was evicted through a forcible entry and detainer suit in late September 1975.

Kamarath filed suit against Bennett asserting breach of an implied warranty of habitability, seeking damages and other relief. The case was tried before the court without a jury in July 1976, resulting in a judgment that Kamarath take nothing. The trial court made detailed findings of fact and conclusions of law, which the appellant challenged on appeal.

Legal Issues Presented

Whether the creation of a month-to-month oral lease imposes an implied warranty of habitability on the landlord, obligating repairs to meet city building code standards.
Whether the City of Dallas Building Code imposes a duty on the landlord to maintain rental premises in a fit condition for human habitation.

Arguments of the Parties

Appellant's Arguments

The month-to-month oral lease includes an implied warranty of habitability requiring the landlord to maintain the premises in compliance with city building codes.
The City of Dallas Building Code itself imposes a duty on the landlord to keep the premises fit for human habitation.
The doctrine of caveat emptor has been discarded in landlord-tenant relationships analogously to the ruling in Humber v. Morton concerning new home construction.

Appellee's Arguments

No express or implied agreement existed obligating the landlord to make repairs.
Appellant failed to prove the provisions of the City of Dallas ordinance, which must be proven and cannot be judicially noticed.
Precedents establish that absent fraud or deceit, landlords have no implied duty to repair leased premises.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Lynch v. Ortlieb, 70 Tex. 727, 8 S.W. 515 (1888)	No implied covenant that leased premises are fit for occupation absent fraud or deceit.	Supported rejection of implied warranty of habitability in oral month-to-month lease.
Perez v. Raybaud, 76 Tex. 191, 13 S.W. 177 (1890)	Same principle as Lynch regarding absence of implied warranty.	Reinforced court's holding that landlord not bound to repair without agreement.
Cameron v. Calhoun-Smith Distributing Co., 442 S.W.2d 815 (Tex. Civ. App. 1969)	Absence of implied warranty of habitability in landlord-tenant relationship.	Supported court's position rejecting implied warranty in this case.
Weinstein v. Harrison, 66 Tex. 546, 1 S.W. 626 (1886)	Landlord not bound to repair unless covenant or agreement exists.	Confirmed no repair duty without explicit agreement.
Yarbrough v. Booher, 141 Tex. 420, 174 S.W.2d 47 (1943)	Same as Weinstein regarding landlord's duty to repair.	Further supported absence of implied repair obligation.
Morton v. Burton-Lingo Co., 136 Tex. 263, 150 S.W.2d 239 (1941)	The landlord-tenant relationship alone does not impose a duty to repair; tenant takes premises as is.	Key precedent affirming no implied duty to repair in landlord-tenant context.
Weiss v. Mitchell, 58 S.W.2d 165 (Tex. Civ. App. 1933)	Same principle on landlord's lack of implied repair duty.	Supported court's rejection of implied warranty.
Jackson v. Amador, 75 S.W.2d 892 (Tex. Civ. App. 1934)	Similar holding on landlord's repair obligations.	Bolstered court's reasoning.
State ex rel. Osborn v. City of McAllen, 127 Tex. 63, 91 S.W.2d 688 (1936)	Municipal ordinances must be proven and cannot be judicially noticed.	Applied to reject appellant's failure to prove city ordinance.
City of Austin v. Walton, 68 Tex. 507, 5 S.W. 70 (1887)	Same principle regarding proof of municipal ordinances.	Supported court's refusal to recognize unproven ordinance.
Humber v. Morton, 426 S.W.2d 554 (Tex. 1968)	Builder-vendor implied warranty of habitability for new houses; rejection of caveat emptor in that context.	Distinguished by court as inapplicable to landlord-tenant relationship.

Court's Reasoning and Analysis

The court first addressed whether a month-to-month oral lease imposes an implied warranty of habitability. It noted that the lease in question was oral, with no express agreement to repair and no allegations of fraud or deceit by the landlord. Citing longstanding Texas precedent, the court reaffirmed that absent fraud or express agreement, landlords have no implied duty to ensure premises are fit for habitation. The tenant takes the premises "as is."

Next, the court considered the appellant's contention that the City of Dallas Building Code imposed a duty on the landlord. The court observed that the ordinance's language was not in the record, and the appellant failed to properly prove the ordinance's provisions. Since municipal ordinances are not subject to judicial notice and must be proven as facts, the court declined to impose any duty based on the unproven ordinance.

The court rejected the appellant's reliance on Humber v. Morton, distinguishing that case as involving a builder-vendor of a new house, not a landlord-tenant relationship. The court held that adopting the appellant's analogy would conflict with established Texas law.

Given these conclusions, the court found no breach of contract or legal duty by the landlord and affirmed the trial court's judgment.

Holding and Implications

The court's final decision is AFFIRMED, upholding the trial court's judgment that the tenant take nothing.

The direct effect is that the appellant's claim for breach of an implied warranty of habitability was rejected, and no damages were awarded. The decision reinforces the established Texas principle that absent fraud, deceit, or express agreement, landlords have no implied duty to repair residential premises under an oral month-to-month lease. The court declined to extend the implied warranty doctrine from new home sales to landlord-tenant relationships. No new legal precedent was created beyond reaffirming existing law.

Show full summary ...

Wilford KAMARATH, Appellant, v. C. C. BENNETT, Appellee.

OPINION

JAMES, Justice.

This is a landlord and tenant case. Plaintiff-Appellant Wilford Kamarath sued Defendant-Appellee C. C. Bennett for damages for breach of an alleged "implied warranty of habitability" of residential rental premises. Trial was had before the court without a jury, after which the trial court entered judgment that the tenant Kamarath take nothing, from which the tenant appeals. We affirm.

On March 1, 1975, Plaintiff Kamarath rented an apartment from Defendant Bennett. The apartment was located in a seventy-five year old two-story brick building. Kamarath inspected the premises prior to renting them. The rent agreed to was $110.00 per month with all utilities being paid for by the landlord, including water, gas, electricity, and sewer. The lease was oral and on a month-to-month basis. Kamarath was an unemployed disabled veteran who had a wife and six children, ages two to nine, living with him.

On June 24, 1975, the building inspectors of the City of Dallas inspected the premises in response to a complaint made by Kamarath. Shortly thereafter, Bennett was notified by mail that the building was in violation of the Dallas Minimum Housing Standards and that Bennett would either have to repair the premises or close them down. Said notice stated that the landlord would have to make a number of itemized repairs in order for the building to conform to the Building Code of the City of Dallas. Specifically, the building code as pleaded by Plaintiff Kamarath is alleged to be contained in the City of Dallas Urban Rehabilitation Standards Ordinance Number 12167, as set out in the Revised Code of Civil and Criminal Ordinances of the City of Dallas.

In July of 1975 Kamarath stopped paying rent, claiming he was justified in doing so because the premises were unfit for human habitation; however, he did not vacate the premises at that time.

On or about July 24, 1975, Kamarath filed this suit against Bennett the landlord, asserting that Bennett violated an implied warranty of habitability by failing to repair the premises. The suit sought actual damages of $5000.00, exemplary damages of $5000.00, treble actual damages ($15,000.00) under the Texas Deceptive Trade Practices Act (see Section 17.50 of the Texas Business and Commerce Code), foreclosure of an asserted judgment lien against the building and against the rent Kamarath claimed he held in his possession, and for interest and attorney's fees.

Then sometime in July or early August of 1975, landlord Bennett analyzed the repairs called for by the City building inspectors and concluded they were too costly, and that the building was too old and rundown to make the repairs worthwhile. That is to say, the landlord chose to close the property down rather than to put more money into the property. He gave notice in mid-August to all tenants to vacate the premises. He (landlord Bennett) testified that all of the tenants except Kamarath complied. Thereafter, in late September 1975, because of his refusal to vacate, Kamarath was evicted by a forcible entry and detainer suit.

This case for damages was tried in July 1976 before the court without a jury, after which the trial court entered judgment that Plaintiff Kamarath take nothing. Pursuant to request by Plaintiff-Appellant, the trial court made findings of fact and conclusions of law, pertinent of which are as follows:

(1) That Plaintiff orally rented the residential premises on a month-to-month basis from the Defendant;

(2) Plaintiff inspected and accepted the premises in their then state of repair, and at said time Plaintiff made no condition on Defendant's obligation as to the then state of repair of the premises;

(3) Nor did he (Plaintiff) make any condition as to the Defendant's obligation as to the future state of repair of the premises;

(4) Defendant made no representation as to the existing state of repair of the premises at the time of renting;

(5) Defendant made no promise as to the future state of repair of the premises at the time of renting;

(6) The change, if any, in the state of repair from and after the renting was no more than ordinary wear and tear resulting from Plaintiff's occupancy;

(7) That Plaintiff failed to pay to Defendant the monthly rent when due; nevertheless, Plaintiff continued occupancy of the premises until removed by judicial decree;

(8) Plaintiff during the occupancy of the premises suffered no injury to his person nor damage to his property arising from the state of repair of the premises;

(9) Plaintiff was not actually or constructively evicted from the premises by the state of repair of such premises;

(10) The fair cash market value of the premises at the time of the renting was $110.00 per month;

(11) And such rental value was not diminished during Plaintiff's occupancy by reason of its state of repair beyond ordinary wear and tear due to Plaintiff's occupancy.

Based upon the foregoing fact findings, the trial court concluded that the Defendant Bennett did not breach any contract with Plaintiff or violate any duty in law owed to Plaintiff concerning the state of repair of the premises in question, and held that Plaintiff take nothing.

Appellant asserts twelve points of error; however, points one through five, inclusive, deal with the central issue vital to Plaintiff's cause of action, to wit: which rule should govern this landlord-tenant relationship: caveat emptor, or a legally implied duty to supply fit premises? Appellant argues that the creation of a month-to-month oral lease carries with it an implied warranty of habitability, and that this warranty obligates the landlord to repair the premises in compliance with the city building code standards. Appellant further asserts that the city building code itself imposed a duty on Defendant Bennett as landlord to maintain the premises in a fit condition. We do not agree.

Let us first consider Appellant's argument that the mere creation of a month-to-month lease creates an implied warranty of habitability. Here we have an oral month-to-month lease whereby the agreed rental is $110.00 per month, and the landlord agrees to furnish the utilities. There is no express agreement on the part of the landlord to make any repairs, and there is no assertion by the tenant that the landlord is guilty of any fraud or deceit concerning the making of repairs or the failure to make them.

The rule is well-settled in Texas that in the absence of fraud or deceit, there is no implied covenant that the demised premises are fit for occupation, or for the particular use which the tenant intends to make of them. Lynch v. Ortlieb (1888) 70 Tex. 727, 8 S.W. 515, Perez v. Raybaud (1890) 76 Tex. 191, 13 S.W. 177; Cameron v. Calhoun-Smith Distributing Co. (Austin Tex.Civ.App. 1969) 442 S.W.2d 815, no writ. Also see 35 Tex.Jur.2d, "Landlord and Tenant," Section 50, page 537. A landlord is not bound to repair unless there be a covenant or agreement on his part to do so. Weinstein v. Harrison (1886) 66 Tex. 546, 1 S.W. 626; Yarbrough v. Booher (1943) 141 Tex. 420, 174 S.W.2d 47, 150 ALR 1369.

Our Supreme Court has said: "The mere relation of landlord and tenant creates no obligation on the part of the landlord to repair or keep in repair the leased premises. The tenant takes the premises as he finds them." Morton v. Burton-Lingo Co. (1941) 136 Tex. 263, 150 S.W.2d 239. Also see Weiss v. Mitchell (Dallas Tex.Civ.App. 1933) 58 S.W.2d 165, writ dismissed; Jackson v. Amador (Eastland Tex.Civ.App. 1934) 75 S.W.2d 892, writ dismissed; 35 Tex.Jur.2d, "Landlord and Tenant," Section 82, page 572. In the light of the foregoing authorities, we hold that the lease in the case at bar did not impose by implication a duty on the part of the landlord to make repairs to the leased premises.

Now let us consider Appellant's argument that the City of Dallas Building Code imposed a duty on the Defendant landlord to maintain the premises in a fit condition. The language of the City Ordinance in question is not in the record. According to the record before us, Appellant sought to offer in evidence the files of the city housing inspector concerning the premises in question; however, the record shows no offer of proof by Appellant of the City Ordinance itself. As stated before, Appellant pleaded the ordinance by name and reference to title, but made no proof of the ordinance. Judicial notice is not taken of municipal ordinances, but they must be proven like other facts. State ex rel. Osborn v. City of McAllen (Tex.Comm.App. 1936) 127 Tex. 63, 91 S.W.2d 688, 692, opinion adopted; City of Austin v. Walton (1887) 68 Tex. 507, 5 S.W. 70. Without proof of the provisions of the city ordinance in question in the case at bar, we cannot say that it puts any duty of any kind upon the Defendant-Appellee landlord, including an implied duty to make repairs on the premises in question. Therefore we overrule Appellant's contention that the city ordinance in question imposed a duty on the landlord to maintain the premises in a fit condition for human habitation.

Appellant cites Humber v. Morton (Tex. 1968) 426 S.W.2d 554 in support of his assertion that the doctrine of caveat emptor has been discarded by our Supreme Court in landlord-tenant relations. We do not agree. Humber was an action by a purchaser of a (new) house and lot from the vendor who was also the contractor who built the house. There it was held that the contractor-vendor impliedly warranted that such house was constructed in a good workmanlike manner and was suitable for human habitation. In making this decision our Supreme Court discarded the doctrine of caveat emptor insofar as it applied to the builder and seller of new houses. Appellant says the Court's reasoning in Humber should be applied by analogy to the landlord-tenant relationship, so as to impose an implied covenant by the landlord to make repairs to render premises suitable for human habitation. To adopt Appellant's argument would cause us to run counter to the many pronouncements of our Supreme Court as cited hereinabove which do not impose such an implied covenant on the landlord. Therefore we are of the opinion and hold that Humber does not have application to the case at bar.

Appellant has other points and contentions; however, under our view of the case as stated above, said points have been rendered moot. All of Appellant's points are accordingly overruled.

Judgment of the trial court is affirmed.

AFFIRMED.