428 F.2d 1071 | D.C. Cir. | 1970
These cases present the question whether housing code
Because of the importance of the question presented, we granted appeallants’ petitions for leave to appeal. We now reverse and hold that a warranty of habitability, measured by the standards set out in the Housing Regulations for the District of Columbia, is implied by
I
The facts revealed by the record are simple. By separate written leases,
“[t]hat there are approximately 1500 violations of the Housing Regulations of the District of Columbia in the building at Clifton Terrace, where Defendant resides some affecting the premises of this Defendant directly, others indirectly, and all tending to establish a course of conduct of violation of the Housing Regulations to the damage of Defendants * * *.”
Settled Statement of Proceedings and Evidence, p. 2 (1966). Appellants conceded at trial, however, that this offer of proof reached only violations which had arisen since the term of the lease had commenced. The Court of General Sessions refused appellants’ offer of proof
Since, in traditional analysis, a lease was the conveyance of an interest in land, courts have usually utilized the special rules governing real property transactions to resolve controversies involving leases. However, as the Supreme Court has noted in another context, “the body of private property law * * *, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical.”
The assumption of landlord-tenant law, derived from feudal property law, that a lease primarily conveyed to the tenant an interest in land may have been ..reasonable in a rural, agrarian society; it may continue to be reasonable in some leases involving farming or commercial land. In these cases, the value of the lease to the tenant is the land itself. But in the case of the modern apartment dweller, the value of the lease is that it gives him a place to live. The city dweller who seeks to lease an apartment on the third floor of a tenement has little interest in the land 80 or 40 feet below, or even in the bare right to possession within the four walls of his apartment. When American city dwellers, both rich and poor, seek “shelter” /today, they seek a well known package of goods and services
Professor Powell summarizes the present state of the law:
“ * * * The complexities of city life, and the proliferated problems of modern society in general, have created new problems for lessors and lessees and these have been commonly handled by specific clauses inserted in leases. This growth in the number and detail of specific lease covenants has reintroduced into the law of estates for years a predominantly contractual ingredient. In practice, the law today concerning estates for years consists chiefly of rules determining the construction and effect of lease covenants. * * * ”10
Ironically, however, the rules governing the construction and interpretation of “predominantly contractual” obligations in leases have too often remained rooted in old property law.
Some courts have realized that certain of the old rules of property law
In our judgment the trend toward treating leases as contracts is wise and well considered. Our holding in this /case reflects a belief that leases of url ban dwelling units should be interpreted 'and construed like any other contract.
Ill
Modem contract law has recognized that the buyer of goods and services in an industrialized society must rely upon the skill and honesty of the supplier to assure that goods and services purchased are of adequate quality.
Implied warranties of quality have not been limited to cases involving sales. The consumer renting a chattel, paying for services, or buying a combination of goods and services must rely upon the skill and honesty of the supplier to at least the same extent as a purchaser of goods. Courts have not hesitated to find implied warranties of fitness and mer
The rigid doctrines of real property law have tended to inhibit the application of implied warranties to transactions involving real estate.
Despite this trend in the sale of real estate, many courts have been unwilling to imply warranties of quality, specifically a warranty of habitability, into leases of apartments. Recent decisions have offered no convincing explanation for their refusal
IV
A. In our judgment the common law itself must recognize the landlord’s obligation to keep his premises in a habitable condition. This conclusion is compelled by three separate considerations. First, we believe that the old rule was based on certain factual assumptions which are no longer true; on its own terms, it can no longer be justified. Second, we believe that the consumer protection cases discussed above require that the old rule be abandoned in order to bring residential landlord-tenant law into harmony with the principles on which those cases rest. Third, we think that the nature of today’s urban housing market also dictates abandonment of the old rule.
The common law rule absolving the lessor of all obligation to repair originated in the early Middle Ages.
Court decisions in the late 1800’s began to recognize that the factual assumptions of the common law were no longer accurate in some cases. For example, the common law, since it assumed that the land was the most important part of the leasehold, required a tenant to pay rent even if any building on the land
Another line of cases created an exception to the no-repair rule for short term leases of furnished dwellings.
“ * * * [A] different rule should apply to one who hires a furnished room, or a furnished Louse, for a few days, or a few weeks or months. Its fitness for immediate use of a particular kind, as indicated by its appointments, is a far more important element entering into the contract than when there is a mere lease of real estate. One who lets for a short term a house provided with all furnishings and appointments for immediate residence may be supposed to contract in reference to a well-understood purpose of the hirer to use it as a habitation. * * * It would be unreasonable to hold, under such circumstances, that the landlord does not impliedly agree that what he is letting is a house suitable for occupation in its condition at the time. * * * "37
These as well as other similar cases
' It is overdue for courts to admit that these assumptions are no longer true with regard to all urban housing. Today’s (urban
Our approach to the common law of landlord and tenant ought to be aided by principles derived from the consumer protection cases referred to above.
Since a lease contract specifies a particular period of time during which the tenant has a right to use his apartment for shelter, he may legitimately expect that the apartment will be fit for habitation for the time period for which it is rented. We point out that in the present cases there is no allegation that appellants’ apartments were in poor condition or in violation of the housing code at the commencement of the leases.
Even beyond the rationale of traditional products liability law, the relationship of landlord and tenant suggests further compelling reasons for the law’s protection of the tenants’ legitimate expectations of quality. The inequality in bargaining power between landlord and tenant has been well documented.
Thus we are led by our inspection of the relevant legal principles and precedents to the conclusion that the old common law rule imposing an obligation _upon the lessee to repair during the lease term was really never intended to apply to residential urban leaseholds. Contract principles established-in other areas of the law provide a more rational framework for the apportionment of landlord-tenant responsibilities; they strongly suggest that a warranty of habitability be implied into all contracts
B. We believe, in any event, that the District’s housing code requires that a warranty of habitability be implied in the leases of all housing that it covers. The housing code — formally designated the Housing Regulations of the District of Columbia — was established and authorized by the Commissioners of the District of Columbia on August 11, 1955.
Two previous decisions of this court, however, have held that the Housing Regulations create legal rights and duties enforceable in tort by private parties. In Whetzel v. Jess Fisher Management Co., 108 U.S.App.D.C. 385, 282 F.2d 943 (1960), we followed the leading ease of Altz v. Lieberson, 233 N.Y. 16, 134 N.E. 703 (1922), in holding (1) that the housing code altered the common law rule and imposed a duty to repair upon the landlord, and (2) that a right of action accrued to a tenant injured by the landlord’s breach of this duty. As Judge Cardozo wrote in Lieberson:
“ * * * We may be sure that the framers of this statute, when regulating tenement life, had uppermost in thought the care of those who are unable to care for themselves. The Legislature must have known that unless repairs in the rooms of the poor were made by the landlord, they would not be made by any one. The duty imposed became commensurate with the need. The right to seek redress is not limited to the city or its officers. The right extends to all whom there was a purpose to protect. * * * ”
134 N.E. at 704. Recently, in Kanelos v. Kettler, 132 U.S.App.D.C. 133, 135, 406 F.2d 951, 953 (1968), we reaffirmed our position in Whetzel, holding that “the Housing Regulations did impose maintenance obligations upon appellee [landlord] which he was not free to ignore.”
The District of Columbia Court of Appeals gave further effect to the Housing Regulations in Brown v. Southall Realty Co., 237 A.2d 834 (1968). There the landlord knew at the time the lease was signed that housing code violations existed which rendered the apartment “unsafe and unsanitary.” Viewing the lease as a contract, the District of Columbia Court of Appeals held that the premises were let in violation of Sections
“Every premises accommodating one or more habitations shall be maintained and kept in repair so as to provide decent living accommodations for the occupants. This part of this Code contemplates more than mere basic repairs and maintenance to keep out the elements; its purpose is to include repairs and maintenance designed to make a premises or neighborhood healthy and safe.”
By its terms, this section applies to maintenance and repair during the lease term. Under the Brown holding, serious failure to comply with this section before the lease term begins renders the contract void. We think it untenable to find that this section has no effect on the contract after it has been signed. To the contrary, by signing the lease the landlord has undertaken a continuing obligation to the tenant to maintain the premises in accordance with all applicable law.
This principle of implied warranty is well established. Courts often imply relevant law into contracts to provide a remedy for any damage caused by one party’s illegal conduct.
“ * * * [T]he law existing at the time and place of the making of the contract is deemed a part of the contract, as though expressly referred to or incorporated in it. * * *
“The rationale for this rule is that the parties to the contract would have expressed that which the law implies ‘had they not supposed that it was unnecessary to speak of it because the law provided for it.’ * * * Consequently, the courts, in construing the existing law as part of the express contract, are not reading into the contract provisions different from those expressed and intended by the parties, as defendants contend, but are merely construing the contract in accordance with the intent of the parties.”56
We follow the Illinois court in holding that the housing code must be read into housing contracts — a holding also required by the purposes and the structure of the code itself.
“* * * [T]he legislature has made a policy judgment — that it is socially (and politically) desirable to impose these duties on a property owner — which has rendered the old common law rule obsolete. To follow the old rule of no implied warranty of habitability in leases would, in our opinion, be inconsistent with the current legislative policy concerning housing standards. * * * ”60
We therefore hold that the Housing Regulations imply a warranty of habitability, measured by the standards which they set out, into leases of all housing that they cover.
V
In the present cases, the landlord sued for possession for nonpayment of rent. Under contract principles,
At trial, finder of fact must make two findings: (1) whether the alleged violations
The jury may find that part of the tenant’s rental obligation has been suspended but that part of the unpaid back rent is indeed owed to the landlord.
The judgment of the District of Columbia Court of Appeals is reversed and the cases are remanded for further proceedings consistent with this opinion.
So ordered.
Circuit Judge ROBB concurs in the result and in Parts IV-B and V of the opinion.
. Housing Regulations of the District of Columbia (1956).
. A clause in the lease provided that the tenant waived the statutory 30-day notice to quit. 45 D.C.Code § 908 (1967) expressly permits waiver of this notice. Appellants’ answer put in issue the validity of the waivers. In view of our disposition, we have no occasion to pass upon this aspect of the case.
. Rule 4(c) of the Landlord and Tenant Branch of the Court of General Sessions provides:
“In suits in this branch for recovery of possession of property in which the basis of recovery of possession is nonpayment of rent, tenants may set up an equitable defense or claim by way of recoupment or set-off in an amount equal to the rent claim. No counterclaim may be filed unless plaintiff asks for money judgment for rent. The exclusion of prosecution of any claims in this branch shall be without prejudice to the prosecution of any claims in other branches of the court.”
Appellants have sought only to defeat the landlord’s action; they have not as yet claimed any money damages for the landlord’s alleged breach of contract. Under Rule 4(c) supra, they may not counterclaim for money damages if the landlord seeks only possession and no money judgment, as it has done here. For the considerations to be applied in determining whether this rule conforms “as nearly as may be practicable” to the Federal Rules of Civil Procedure as required by 13 D.C.Code § 101 (1967), see McKelton v. Bruno, 138 U.S.App.D.C. -, 428 F.2d 718 (decided February 17, 1970).
. According to established procedure, this case was submitted to both the District of Columbia Court of Appeals and this court on the basis of a sparse “Settled Statement of Proceedings and Evidence,” as approved by both parties and the trial judge. Unfortunately, the court’s ruling on the offer of proof was made from the bench, and the basis of the ruling is not reflected in the “Settled Statement.” We have recently noted the inadequacy of such records for review by an appellate court. Lee v. Habib, 137 U.S.App.D.C. 403, 424 F.2d 891 (1970).
. In the District of Columbia Court of Appeals, appellee urged that these cases
. Jones v. United States, 362 U.S. 257, 266, 80 S.Ct. 725, 733, 4 L.Ed.2d 697 (1960).
. See Spencer v. General Hospital of the District of Columbia, 138 U.S.App.D.C. 48, 53, 425 F.2d 479, 484 (1969) (en banc); Schipper v. Levitt & Sons, Inc., 44 N.J. 70, 90, 207 A.2d 314, 325 (1965). Cf. 11 S. Williston, Contracts § 1393A at 461 (3d ed. W. Jaeger 1968) (“Most of the leading jurisdictions have not hesitated to undo a judicially committed blunder * * * by employing the same means — judicial decisions”) and cases cited therein at n. 20.
. Whetzel v. Jess Fisher Management Co., 108 U.S.App.D.C. 385, 388, 282 F.2d 943, 946 (1960).
. See, e. g., National Commission on Urban Problems, Building the American City 9 (1968). The extensive standards set out in the Housing Regulations provide a good guide to community expectations.
. 2 R. Powell, Real Property ¶ 221 [1] at 179 (1967).
. E. g., Medico-Dental Building Co. v. Horton & Converse, 21 Cal.2d 411, 418, 132 P.2d 457, 462 (1942). See also 1 American Law of Property § 3.11 at 202-205 (A. Casner ed. 1952); Note, The California Lease — Contract or Conveyance?, 4 Stan.L.Rev. 244 (1952); Friedman, The Nature of a Lease in New York, 33 Cornell L.Q. 165 (1947).
. Kessler, The Protection of the Consumer Under Modern Sales Law, 74 Yale L.J. 262, 263 (1964).
. This approach does not deny the possible importance of the fact that land is involved in a transaction. The interpretation and construction of contracts between private parties has always required courts to be sensitive and responsive to myriad different factors. We believe contract doctrines allow courts to be properly sensitive to all relevant factors in interpreting lease obligations.
We also intend no alteration of statutory or case law definitions of the term “real property” for purposes of statutes or decisions on recordation, descent, conveyancing, creditors’ rights, etc. We contemplate only that contract law is to determine the rights and obligations of the parties to the lease agreement, as between themselves. The civil law has always viewed the lease as a contract, and in our judgment that perspective has proved superior to that of the common law. See 2 M. Planiol, Treatise on the Civil Law § 1663 et seq. (1959); 11 La.Stat.Ann., Civil Code, Art. 2669 (1952).
. See generally 8 S. Williston, Contracts §§ 983-989 (3d ed. W. Jaeger 1964); W. Prosser, Torts § 95 (3d ed. 1964).
. See Jaeger, Warranties of Merchantability and Fitness for Use, 16 Rutgers L.Rev. 493 (1962); Uniform Commercial Code §§ 2-314, 2-315 (1968).
. Ibid.
. 28 D.C.Code Subtitle I (1967).
. Farnsworth, Implied Warranties of Quality in Non-Sales Cases, 57 Colum.L.Rev. 653 (1957). See Cintrone v. Hertz Truck Leasing & Rental Service, 45 N.J. 434, 212 A.2d 769 (1965); 2 F. Harper & F. James, Torts § 28.19 at 1577 n. 5 and n. 6 (1956).
. See, e. g., Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (1960); Goldberg v. Kollsman Instrument Corp., 12 N.Y.2d 432, 240 N.Y.S.2d 592, 191 N.E.2d 81 (1963). See generally Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer), 69 Yale L.J. 1099 (1960); Jaeger, Product Liability: The Constructive Warranty, 39 Notre Dame Lawyer 501 (1964).
. See Fegeas v. Sherill, 218 Md. 472, 147 A.2d 223 (1958); 7 S. Williston, Contracts § 926 at 800-801, § 926A (3d ed. W. Jaeger 1963).
. See generally Bearman, Caveat Emptor in Sale of Realty — Recent Assaults Upon the Rule, 14 Vand.L.Rev. 541 (1961); Dunham, Vendor’s Obligation as to Fitness of Land for a Particular Purpose, 37 Minn.L.Rev. 108 (1953).
. See Waggoner v. Midwestern Development, Inc., S.D., 154 N.W.2d 803 (1967); Bethlahmy v. Bechtel, 91 Idaho 55, 415 P.2d 698 (1969); Schipper v. Levitt & Sons, Inc., supra Note 7; Carpenter v. Donohoe, 154 Colo. 78, 388 P.2d 399 (1984); Loraso v. Custom Built Homes, Inc., La.App., 144 So.2d 459 (1962). Other cases still continue the older limitation on the vendor’s liability to homes sold before construction is complete. See, e. g., Hoye v. Century Builders, 52 Wash.2d 830, 329 P.2d 474 (1958).
. See Schiro v. W. E. Gould & Co., 18 Ill.2d 538, 165 N.E.2d 286 (1960); Annot., 110 A.L.R. 1048 (1937).
. Connor v. Great Western Savings and Loan Ass’n, 69 Cal.2d 850, 73 Cal.Rptr. 369, 447 P.2d 609 (1968) (in bank) (Traynor, Ch. J.). Chief Justice Tray-nor’s excellent opinion utilizes tort doctrines to extend liability beyond the immediate seller.
. Comment, Liability of the Institutional Lender for Structural Defects in New Housing, 35 U.Chi.L.Rev. 739 (1968).
. E. g., Kearse v. Spaulding, 406 Pa. 140, 176 A.2d 450 (1962); Susskind v. 1136 Tenants Corp., 43 Misc.2d 588, 251 N.Y.S.2d 321 (1964); Rubinger v. Del Monte, N.Y.S.Ct., App.T., 217 N.Y.S.2d 792 (1961).
. The cases which recite this old rule are legion. A representative sampling is cited in 32 Am.Jur. Landlord and Tenant § 655 n. 14 (1941).
. "As far as tort liability is concerned, we have previously held that the old common law rule has been changed by passage of the housing code and that the landlord has a duty to maintain reasonably safe premises. See Note 52 infra.
. Although the present cases involve written leases, we think there is no particular significance in this fact. The landlord’s warranty is implied in oral and written leases for all types of tenancies.
. The rule was “settled” by 1485. 3 W.Holdsworth, A History of English Law 122-123 (6th ed. 1934). The common law rule discussed in text originated in the even older rule prohibiting the tenant from committing waste. The writ of waste expanded as the tenant’s right to . possession grew stronger. Eventually, in order to protect the landowner’s reversionary interest, the tenant became obligated to make repairs and liable to eviction and damages if he failed to do so. Ibid.
. The land was so central to the original common law conception of a leasehold that rent was viewed as “issuing” from the land: “[T] he governing idea is that the land is bound to pay the rent * *. We may almost go to the length of saying that the land pays it through [the tenant’s] hand.” 2 F. Pollock & F. Maitland, The History of English Law 131 (2d ed. 1923).
. Many later judicial opinions have added another justification of the old common law rule. They have invoked the timeworn cry of caveat emptor and argued that a lessee has the opportunity to inspect the premises. On the basis of his inspection, the tenant must then take the premises “as is,” according to this reasoning. As an historical matter, the opportunity to inspect was not thought important when the rule was first devised. See Note 30 supra. To the extent the no-repair rule rests on caveat emptor, see page 1079, infra.
. Even the old common law courts responded with a different rule for a landlord-tenant relationship which did not conform to the model of the usual agrarian lease. Much more substantial obligations were placed upon the keepers of inns (the only multiple dwelling houses known to the common law). Their guests were interested solely in shelter and could not be expected to make their own repairs. \ “The modern apartment dweller more j closely resembles the guest in an inn than he resembles an agrarian tenant, but the; law has not generally recognized the similarity.” J. Levi, P. Hablutzel, L. Rosenberg & J. White, Model Residential Landlord-Tenant Code 6-7 (Tent. Draft 1969).
. Paradine v. Jane, Aleyn 26, 82 Eng.Rep. 897 (K.B. 1947); 1 American Law of Property, supra Note 11, § 3.103.
. Graves v. Berdan, 26 N.Y. 498 (1863).
. 1 American Law of Property, supra Note 11, § 3.45 at 267-268, and cases cited therein.
. Ingalls v. Hobbs, 156 Mass. 348, 31 N.E. 286 (1892).
. The cases developing the doctrines of “quiet enjoyment” and “constructive eviction” are the most important. See 2 R.Powell, supra Note 10, If 225 [3]. See also Gladden v. Walker & Dunlop, 83 U.S.App.D.C. 224, 168 F.2d 321 (1948) (landlord has duty to maintain portions of apartment “under his control” including plumbing, heating and electrical systems); J. D. Young Corp. v. McClintic, Tex.Civ.App., 26 S.W.2d 460 (1930) (implied covenant of fitness in lease of building under construction); Steefel x. Rothschild, 179 N.Y. 273, 72 N.E. 112 (1904) (duty to disclose latent defects).
. In 1968 more than two thirds of America’s people lived in the 228 largest metropolitan areas. Only 5.2% lived on farms. The World Almanac 1970 at 251 (L. Long ed.). More than 98% of all housing starts in 1968 were non-farm. Id. at 313.
. See J. Levi et al., supra Note 33, at 6.
. See Part III, supra.
. Nor should the average tenant be thought capable of “inspecting” plaster, floorboards, roofing, kitchen appliances, etc. To the extent, however, that some defects are obvious, the law must take note of the present housing shortage. Tenants may have no real alternative but to accept such housing with the expectation that the landlord will make necessary repairs. Where this is so, caveat emptor must of necessity be rejected.
. In Brown v. Southall Realty Co., 237 A.2d 834 (1968), the District of Columbia Court of Appeals held that unsafe and unsanitary conditions existing at the beginning of the tenancy and known to the landlord rendered any lease of those premises illegal and void.
. See Edwards v. Habib, 130 U.S.App.D.C. 126, 140, 397 F.2d 687, 701 (1968); 2 R. Powell, supra Note 10, ¶ 221 [1] at 183; President’s Committee on Urban Housing, A Decent Home 96 (1968).
. President’s Committee, supra Note 44, at 96; National Commission, supra Note 9, at 18-19; G. Sternlieb, The Tenement Landlord 71 (1966).
. R. Powell, supra Note 10, ¶ 221 [1] at 183 n. 13.
. See generally President’s Committee, supra Note 44.
. A. Schorr, Slums and Insecurity (1963); J. Levi, et al., supra Note 33, at 7-8.
. We need not consider the provisions of the written lease governing repairs since this implied warranty of the landlord could not be excluded. See Henningsen v. Bloomfield Motors, Inc., supra Note 19; Kay v. Cain, 81 U.S.App.D.C. 24, 25, 154 F.2d 305, 306 (1946). See also Note 58, infra.
. 2 D.C.Register 47 (1955).
. These include standards for nursing homes and other similar institutions. The full scheme of the Regulations is set out in Whetzel v. Fisher Management Co., supra Note 8.
. Kanelos and Whetzel have effectively overruled, on the basis of the enactment of the housing code, Bowles v. Mahoney, 91 U.S.App.D.C. 155, 202 F.2d 320 (1952) (two to one decision, Judge Bazelon dissenting).
. “No person shall rent or offer to rent any habitation, or the furnishings thereof, unless such habitation and its furnishings are in a clean, safe and sanitary condition, in repair, and free from rodents or vermin.”
. See infra.
. See cases cited in Annot., 110 A.L.R. 1048 (1937).
. Schiro v. W. E. Gould & Co., supra Note 23, 18 Ill.2d at 544, 165 N.E.2d at 290. As a general proposition, it is undoubtedly true that parties to a contract intend that applicable law will be complied with by both sides. We recognize, however, that reading statutory provisions into private contracts may have little factual support in the intentions of the particular parties now before us. But, for reasons of public policy, warranties are often implied into contracts by operation of law in order to meet generally prevailing standards of honesty and fair dealing. When the public policy has been enacted into law like the housing code, that policy will usually have deep roots in the expectations and intentions of most people. See Costigan, Implied-in-Fact Contracts and Mutual Assent, 33 Harv.L.Rev. 376, 383-385 (1920).
. “The housing and sanitary codes, especially in light of Congress’ explicit direction for their enactment, indicate a strong and pervasive congressional concern to secure for the city’s slum dwellers decent, or at least safe and sanitary, places to live.” Edwards v. Habib, supra Note 44, 130 U.S.App.D.C. at 139, 397 F.2d at 700.
. Any private agreement to shift the duties would be illegal and unenforceable. Thé precedents dealing with industrial safety statutes are directly in point:
“ * * * [T]he only question remaining is whether the courts will enforce or recognize as against a servant an agreement express or implied on his part to waive the performance of- a statutory duty of the master imposed for the protection of the servant, and in the interest of the public, and enforceable by criminal prosecution. We do not think they will. To do so would be to nullify the object of the statute. * * * ”
Narramore v. Cleveland, C., C. & St. L. Ry. Co., 6 Cir., 96 F. 298, 302 (1899). See W. Prosser, Torts § 67 at 468-469 (3d ed. 1964) and cases cited therein.
. See Gribetz & Grad, Housing Code Enforcement: Sanctions and Remedies, 66 Colum.L.Rev. 1254 (1966); Note, Enforcement of Municipal Housing Codes, 78 Harv.L.Rev. 801 (1965).
. Pines v. Perssion, 14 Wis.2d 590, 596, 111 N.W.2d 409, 412-413 (1961). Accord, Buckner v. Azulai, 251 Cal.App.2d Supp. 1013, 59 Cal.Rptr. 806 (1967).
. In extending all contract remedies for breach to the parties to a lease, we include an action for specific performance of the.dandlord’s implied warranty of habitability.
. To be relevant, of course, the violations must affect the tenant’s apartment or common areas which the tenant uses. Moreover, the contract principle that no one may benefit from his own wrong will allow the landlord to defend by proving the damage was caused by the tenant’s wrongful action. However, violations resulting from inadequate repairs or materials which disintegrate under normal use would not be assignable to the tenant. Also we agree with the District of Columbia Court of Appeals that the tenant’s private rights do not depend on official inspection or official finding of violation by the city government. Diamond Housing Corp. v. Robinson, 257 A.2d 492, 494 (1969).
. The jury should be instructed that one or two minor violations standing alone which do not affect habitability are de minimis and would not entitle the tenant to a reduction in rent.
. As soon as the landlord made the necessary repairs rent would again become due. Our holding, of course, affects only eviction for nonpayment of rent. The landlord is free to seek eviction at the termination of the lease or on any other legal ground.
. In George Y. Worthington & Son Management Corp. v. Levy, 204 A.2d 334, 336 (1964), the District of Columbia Court of Appeals approved a similar procedure:
“In actions for possession of real property by reason of default in rent, where no money judgment for the back rent is sought, it is nevertheless proper practice for the trial court to specifically find the amount of rent in arrears. * * # H
. Compare Molyneaux v. Town House, Inc., D.C.C.A., 195 A.2d 744 (1963). A jury finding that the landlord had failed to live up to all of his obligations would operate as a conclusive finding that the tenant was entitled to equitable relief under Molyneaux.
. Appellants in the present cases offered to pay rent into the registry of the court during the present action. We think this is an excellent protective procedure. If the tenant defends against an action for possession on the basis of breach of the landlord’s warranty of habitability, the trial court may require the tenant to make future rent payments into the registry of the court as they become due; such a procedure would be appropriate only while the tenant remains in possession. The escrowed money will, however, represent rent for the period between the time the landlord files suit and the time the case comes to trial. In the normal course of litigation, the only factual question at trial would be the condition of the apartment during the time the landlord alleged rent was due and not paid.
As a general rule, the escrowed money should be apportioned between the landlord and the tenant after trial on the basis of the finding of rent actually due for the period at issue in the suit. To insure fair apportionment, however, we think either party should be permitted to amend its complaint or answer at any time before trial, to allege a change in the condition of the apartment. In this event, the finder of fact should make a separate finding as to the condition of the apartment at the time at which the amendment was filed. This new finding will have no effect upon the original action; it will only affect the distribution of the escrowed rent paid after the filing of the amendment.