Appellants appeal the trial court’s order granting appellee’s motion for summary judgment.
Appellants, the tenants under written lease agreements in a duplex owned by appellee, lost their personal property when the duplex was destroyed by fire. None of the appellants had insurance coverage for their property. Appellee purchased the house in November 1988, at which time an FHA inspection was performed on the house, and appellee made the purchase subject to the existing leases of appellants. After the purchase, appellee, from time to time, exercised a limited right of access to the house which was granted in the leases for purposes of inspection and maintenance. Also, in February 1989, ap-pellee was making repairs to the exterior of the house and in the process, removed some asbestos shingles from the east and west sides of the house exterior. Before the shingles could be replaced, the fire occurred in mid-February 1989. The east side of the duplex, which was occupied by two of the appellants, was heated by a convection floor furnace which was probably installed in the 1950s. It is undisputed that the fire originated from this furnace on the east side of the house. It is also undisputed that appellee was never notified by any of the tenants or any public or private inspector of any problems or defects in or with the furnace. There was no allegation made that the furnace failed to comply with applicable building codes and appellee made no changes or repairs to the furnace prior to the fire. Appellee submitted the affidavit of an expert who stated that it was his opinion that the fire was caused by a cushion or pillow that was left on top of the floor furnace grate, eventually igniting and spreading to the floor. Appellants submitted another expert’s affidavit in which the expert opined that the fire did not begin from the ignition of combustible materials left on the grate, but that the type of furnace involved was “inherently dangerous” because the flow of air around the furnace causes a drying of the wood joists around the furnace. The expert determined that the use of the furnace caused the wood framing the *341 furnace to ignite and begin the fire. This expert further stated that the removal of the asbestos shingles from the exterior of the house caused the furnace to run longer than normal to heat the house and this continuous use resulted in the fire pursuant to the process just described. The trial court determined that since there was no question that appellee had not received notice of any defect with the furnace, then summary judgment for appellee should be granted, notwithstanding the experts’ disagreement as to the conditions contributing to the cause of the fire. We agree and affirm.
1. In their first two enumerations of error, appellants assert that material issues of fact exist as to whether appellee was negligent in making repairs to the premises and whether appellee breached an implied warranty of habitability. OCGA § 44-7-13 states that a landlord must keep the premises in repair, and OCGA § 44-7-14 provides “[h]aving fully parted with possession and the right of possession, the landlord is not responsible to third persons for damages resulting from the negligence or illegal use of the premises by the tenant; provided, however, the landlord is responsible for damages arising from defective construction or for damages arising from the failure to keep the premises in repair.” Although it is undisputed that the fire originated with the furnace and that appellee had no notice or knowledge of any problem or defect with the furnace, appellants contend that appellee was negligent in removing the asbestos shingles from the exterior of the house because the furnace was thereby caused to run for more extended periods of time. Appellants admit that they also had no knowledge of any defect in the furnace. “ ‘The responsibility of a landlord in a case of the present character for failure to repair a latent defect in the premises ... is not absolute, but (is) predicable only on his knowledge of the defect and the consequent necessity for repairs.’ [Cit.]”
Davis v. Smith,
As support for their claim of a breach of warranty, appellants cite the case of
Thompson v. Crownover,
2. Appellants contend, in their third enumeration of error, that a material issue of fact exists as to the landlord’s duty to inspect and repair the premises. Appellants argue that since appellee exercised his limited right to enter the property, he retained possession of the property and would be liable for a failure to exercise ordinary and reasonable care to discover any defect. First, as we stated in Division 1, we do not believe that appellee failed to exercise reasonable care to discern any defect with the furnace. Second, we have previously held that retention of “the right to enter the leased premises ... for landlord-related purposes does not evidence such dominion and control of the premises so as to vitiate appellee’s limited liability under [OCGA § 44-7-14]. . . .”
Godwin v. Olshan,
3. In view of our decision that summary judgment was appropriate due to the lack of notice to appellee, it is unnecessary to reach appellants’ fourth enumeration based upon the validity of the exculpatory clauses in the lease.
Judgment affirmed.