Brad Pettit—Senior Attorney, National Legal Research Group

            Although the general rule is that in the absence of an express agreement between a landlord and a tenant to the contrary, the tenant cannot recover from his or her landlord the costs of improvements that he or she made to the leased residential property, recent decisions by Idaho trial and appellate courts in the same case suggest that a tenant can obtain equitable restitution from his or her landlord on the grounds of unjust enrichment for improvements to the leased premises that he or she made while the parties were mutually contemplating a future conveyance of the premises to the tenant as long as the landlord was aware of the improvements and never objected to them. Asher v. McMillan, No. 47684, 2021 WL 443227, at *4 (Idaho Feb. 9, 2021) (not yet released for publication; until released, it is subject to revision or withdrawal). It is significant to note that the Asher court ruled that although the parties' relationship was grounded in contract, the tenants were not limited to seeking legal relief under breach-of-contract theories and could obtain restitution from their landlord under the equitable theory of unjust enrichment:

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Brad Pettit—Senior Attorney, National Legal Research Group

            In a very recent ruling that was consistent with prior Virginia state court decisions that favor residential landlords in cases involving personal injury suits by tenants against landlords, a federal district court sitting in Virginia dismissed wrongful death and intentional infliction of emotional distress ("IIED") actions by the plaintiff, a mobile home owner, against a mobile home park lot owner that arose when a decaying tree fell on the plaintiff's mobile home and crushed her son to death. Darlington v. Harbour E. Vill. LLC, No. 3:20cv157-HEH, 2020 WL 3979664 (E.D. Va. July 14, 2020) (slip copy) (only the Westlaw citation is currently available), appeal filed (4th Cir. Aug. 11, 2020). Even though there was evidence that prior residents in the mobile home park had warned the lot owner at least three times about the decaying tree and the dangers that it posed, the Darlington court ruled that, in the absence of a statutory or common-law duty on the part of the mobile home park lot owner/lessor to the mobile homeowner/lot lessee to maintain a safe condition of the lot, the plaintiff could not bring a wrongful death claim against the lot lessor:

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Brad Pettit, Senior Attorney, National Legal Research Group

     An unreported mid-level appellate decision by a Pennsylvania Superior Court illustrates that courts take a dim view to a residential landlord's attempt to defend against breach of covenant of quiet enjoyment and constructive conviction claims against him or her by a tenant by asserting that the parties' dispute stemmed from a good-faith mistake or misunderstanding. In Grodin v. Farr, No. 45 WDA 2019, 2020 WL 919200 (Pa. Super. Ct. Feb. 26, 2020) (nonprecedential decision), the court rejected a landlord's claim that he did not breach the covenant of quiet enjoyment or constructively evict his tenants by changing the locks on their unit because he mistakenly assumed that the tenants had received a key to the back door from the previous tenants and could still gain access to the leased premises.

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Brad Pettit, Senior Attorney, National Legal Research Group

            A decision by the Supreme Court of Idaho illustrates the difficulties that a guest of a residential tenant may face when trying to hold the tenant's landlord liable for injuries sustained by the guest when the guest was bitten by the tenant's dog. See Bright v. Maznik, 162 Idaho 311, 396 P.3d 1193 (2017). In Bright, a guest of the tenants advanced several theories of liability in her suit against the tenants' landlords: negligence per se under Idaho's vicious dog statute, breach of duty to protect the guest from an animal known to have vicious tendencies, common law negligence, voluntary assumption of duty, and premises liability. None of these claims were successful, primarily because the plaintiff failed to make the requisite factual showings that the landlords either "knew" about or "harbored" a vicious animal on the premises.

            For example, the Bright court found that the landlords could not be charged with "harboring" the tenants' dog on the property, as required under the vicious dog statute, regardless of whether the dog was actually "vicious." Id., 396 P.3d at 1197. The Bright court reasoned that since the term "harbor," as it is used in the vicious dog statute, "contemplates protecting an animal, or undertaking to control its actions," the landlords could not be charged with negligence per se under the statute because there was no evidence in the record that the landlords "received clandestinely and concealed the [tenants'] dog" or "had an animal in [their] keeping." Id. (citations omitted).

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Brad Pettit, Senior Attorney, National Legal Research Group 

            The general rule is that "[w]hile a landlord is not a guarantor for the safety of those persons who might be expected to come upon its property, it does have a duty to make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition."  49 Am. Jur. 2d Landlord and Tenant § 454 (Westlaw May 2017 Update) (citing Rodriguez v. Providence Hous. Auth., 824 A.2d 452 (R.I. 2003)). A recent decision by a Georgia appellate court in a deck collapse case indicates that unless the evidence shows that an out-of-possession lessor of residential real estate knew or had reason to know that a potentially dangerous condition existed with respect to the premises or an improvement thereto, the landlord cannot be held liable for injuries that were suffered by a guest of the tenant due to the alleged failure to repair the premises or to make an improvement. Aldredge v. Byrd, 341 Ga. App. 300, 799 S.E.2d 263 (2017), reconsideration denied (Apr. 26, 2017).

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Brad Pettit, Senior Attorney, National Legal Research Group

            "[A]n implied waiver of nonperformance under a contract will be established by a party's conduct inconsistent with the assertion of the right to the performance allegedly waived, or by conduct that indicates that strict compliance with the contract will not be required, provided that the conduct manifests the requisite intent to waive the right to performance or has induced the requisite reliance by the other party." 13 Williston on Contracts § 39:30 (4th ed.) (Westlaw current through May 2015 Update) (footnotes omitted). For example, a lessor who regularly accepts late payments may establish a course of performance or "an order of business," which operates to waive, as to future payments, a provision making time of the essence and to preclude that party from enforcing a forfeiture. Id. It is also a principle of contract law that "[u]nless otherwise agreed, a course of dealing between the parties gives meaning to or supplements or qualifies their agreement." Restatement (Second) of Contracts § 223 (1981) (Westlaw current through Oct. 2016 Update).

            In the landlord-tenant context, "[a] landlord may expressly or impliedly waive the tenant's failure to perform a promise [and] [t]his waiver will deprive him [or her] of the remedies otherwise available for the tenant's default."  Restatement (Second) of Property: Landlord and Tenant § 13 cmt. f (1977) (Westlaw current through Oct. 2016 Update).  For example, "[a] landlord may waive his [or her] right to the prompt payment of rent by acting in such a manner that the tenant is led to believe that a later date of payment than that specified in the lease is acceptable."  Id. § 12.1 cmt. c.

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The Lawletter Vol 40 No 11

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The Lawletter Vol 40 No 8

Brad Pettit, Senior Attorney, National Legal Research Group

     In 2014, an Indiana appellate court considered the issue of whether a landlord can enforce a provision in a residential lease contract that seeks to protect it from liability for personal injuries caused by fungus or mold on the leased premises. In Hi-Tec Properties, LLC v. Murphy, 14 N.E.3d 767 (Ind. Ct. App.), transfer denied, 20 N.E.3d 851 (Ind. 2014), a tenant who leased an apartment that was below ground level brought suit against her landlord, alleging, inter alia, that mold in the apartment had aggravated her preexisting asthma and caused other injuries. The landlord defended against the tenant's claim by pointing to a clause in the parties' lease agreement that read in pertinent part as follows:

23. Mold. Lessee acknowledges that no evidence of mold was observed in the living unit prior to leasing. Lessee also agrees to notify Lessor in writing within ten (10) days of observing any mold. Lessor shall then have two (2) weeks within which to remediate the conditions at no cost to Lessee. As part of the consideration of this lease, Lessor shall have no personal liability for personal injury or property damage as a result of any mold, fungus, etc. . . . In any event, Lessee releases and agrees to save harmless, Lessor and their agents for personal injury and suffering, mental anguish, medical expenses, lost wages, etc., to themselves and or family members.

Id. at 771 (court's emphases omitted).

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