Huddleson, Charles R.

English

UND Scholarly Commons (University of North Dakota)

North Dakota Law Review Volume 37 Number 2 Article 10 1961 Landlords and Tenant - Liability of Landlord for Defects in Leased Premises - Liability of Landlord to Tenant or Guest of Tenant Charles R. Huddleson Follow this and additional works at: https://commons.und.edu/ndlr  Part of the Law Commons Recommended Citation Huddleson, Charles R. (1961) "Landlords and Tenant - Liability of Landlord for Defects in Leased Premises - Liability of Landlord to Tenant or Guest of Tenant," North Dakota Law Review: Vol. 37 : No. 2 , Article 10. Available at: https://commons.und.edu/ndlr/vol37/iss2/10 This Case Comment is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact und.commons@library.und.edu. 1961] RECENT CASESgives employees the "full freedom" to designate representatives of their ownchoosing to negotiate the terms and conditions of their employment.In comparing the North Dakota statute to the New York and Florida statutesand the court's subsequent interpretation, it is submitted that the decisionreached in Hill v. Florida would be a controlling precedent in North Dakotaand the North Dakota statute would be declared invalid.DAVID D. GORDON.LANDLORDS AND TENANT - LIABILITY OF LANDLORD FOR DEFECTS IN LEASEDPREMISES - LIABILITY OF LANDLORD TO TENANT OR GUEST OF TENANT. - Anaction was brought by a guest of a tenant for injuries due to a loose tread ofa stairway in the leased premises. The stairway of a two-story dwelling wasused solely by the tenant. There was no covenant to repair. The SupremeCourt of Minnesota held, two justices dissenting, that even in the absence of acovenant to repair, the liability of the landlord is not restricted to those in-stances where the lessor has actual knowledge of the dangerous condition ofthe premises, but includes those cases where he has information which wouldlead an ordinarily reasonable man to suspect they exist and he is negligent forfailing to disclose this. The dissent was based on the fact that Minnesota hadconsistently for sixty years held that a landlord is liable only for nondisclosureof defects actually known to him. Johnson v. O'Brien, 105 N.W.2d 244 (Minn.1960).When the landlord retains control over part of the premises which is used incommon by several tenants. he is under an aflirmitive obligation to exercisereasonable care to inspect and repair such parts of the premises and is liablefor injuries resulting from his failure to do so.1 But when, as in the instantcase, the area was used solely by the tenant, a different result should obtain.In the absence of concealment of a latent defect known to the landlord, therule of caveat emptor applies to leases of real estate - the control of whichpasses to the tenant - and the landlord is not responsible for injuries result-ing therefrom.2 The only variation from the rule that the landlord is not liablefor injuries resulting from unknown latent defects in the premises over whichthe tenant has control is the extent of the knowledge required to hold thelandlord liable for nondisclosure of the latent defect. Most jurisdictions re-quire actual knowledge of the defect, 3 while other jurisdictions hold the land-lord responsible for defects he should have known about. 4 A minority put thelandlord under the burden of discovering defects that would lead a reasonablefreedom of association, self organization, and designation of representatives of his ownchoosing to negotiate the terms and conditions of his employment .....1. Pessagno v. Euclid Inv. Co., 112 F.2d 577 (D.C. Cir. 1940); Primus v. BellevueApartments, 241 Iowa 1055, 44 N.W.2d 347 (1950); Timmons v. Williams Wood ProductsCorporation, 164 S.C. 361, 162 S.E. 329 (1932).2. E.g., Taylor v. Geroff, 347 Il1. App. 55, 106 N.E.2d 210 (1952); McDermott v.Merchants Co-op Bank, 320 Mass. 425, 69 N.E.2d 675 (1946); Rhoades v. Seidel, 139Mich. 608, 102 N.W. 1025 (1905). See generally I TIFFANY, REAL PROPERTY § 104(3d ed. 1939).3. Taylor v. Gregoff, supra.; Pburn v. Fourseam Coal Co., 303 Ky. 443, 197 S.W.2d921 (1946); Davis Y. Manning, 98 Neb. 707, 154 N.W. 239 (1915); Skrzypczak v.Konieczka, 224 Wis. 455, 272 N.W. 659'(1937).4. Logsdon 'v. Central Development Ass'n, 233 Mo. App. 499, 123 S.W.2d 631(1938); Charlton v. Brunelle, 82 .N.H. 100, 130 Atl. 216 (1925); Rhoades v. Seidel, 139Mich. 608, 102 N.W. 1025 (1905).NORTH DAKOTA LAW REVIEWman to search out and disclose. 5 The courts seem to be in agreement thatwhere the defect is patent, the landlord is under no duty to disclose.6 Asstated in the instant case,7 a guest or a member of the family of a tenant hasno higher rights against the landlord than the tenant has.8It is noteworthy that the courts are split as to whether a landlord has anytort liability even when there is a covenant to repair. The absence of occupa-tion and control 9 or that the tenant merely has an action ex contractu'o arethe main objections to imposing tort liability.The result of the instant case would not be reached in North Dakota, sincethe landlord has no duty to disclose latent defects he has no knowledge of andis not required to inspect the premises before transferring possession to thetenant.1 1 The landlord does, however, owe a duty to the tenant to exerciseordinary care in maintenance of portions which are used in common by thetennants and over which he has control.12To hold the landlord liable for an injury to a tenant's guest where he doesnot have control over the leased premises - as it was used exclusively by thetenant, who must have had knowledge of the obvious defect - is stretchinghis duty to incidents over which he has no control and would require him towarn someone of a patent defect in the premises.CHARLES R. HUDDLESON.MINES AND MINERALS - MINERAL RESERVATIONS IN DEEDS - Is SUBSURFACEWATER A MINERAL? - In 1935, F. C. Le Derer leased certain land to TexacoInc. for the purpose of drilling for and producing water. Le Derer had se-cured the land in 1952 from Oscar Killian who included an "oil, gas andother minerals" reservation. Killian had obtained only the surface of saidland with an identical reservation from the Fleming Foundation, plaintiff. Theplaintiff had bought the land from the individual plaintiffs, who had reservedone-half interest in all oil gas and other minerals. Texaco drilled several waterwells and used considerable water therefrom. The individual plantiffs andFleming brought an action against the Texaco Co. for damages for wrongfullyproducing, converting and appropriating the water. The lower court foundreservations of "oil, gas and other minerals" in the three deeds did not in-clude water. Fleming appeals on the basis that if "mineral" does not includesub-surface water, then the individual appellants have no interest in suchwater as Fleming deeded only the surface to Kallian, retaining everything be-low the surface. Therefore, Fleming would own all subsurface water. The5. Harrill v. Sinclair Refining Co., 225 N.C. 421, 35 S.E.2d 240 (1945); Robinson v.Tate, 34 Tenn. App. 215, 236 S.W.2d 445 (1950).6. Harrill v. Sinclair Refining Co., supra, Corcione v. Ruggieri, 139 A.2d 388 (R.I.1958); Stewart v. Raleigh County Bank, 121 W.Va. 181, 2 S.E.2d 274 (1939). See gen-_erally 32 Am. Jur. Landlord and Tenant § 671.7. Johnson v. OBrien, 105 N.W.2d 244, 246 (Minn. 1960).8. Wilson v. Lamberton, 102 F.2d 506 (3d Cir. 1939); State v. Feldstein, 207 Md.App. 20, 113 A.2d 100 (1955); McDermott v. Merchants Co-op Bank, 320 Mass, 425,69 N.E.2d 675 (1946); Hahnken v. Gillespie, 329 Mo. 51, 43 S.W.2d,797 (1931).9. Van Avery v. Platte Valley Land & Investment Co., 133 Neb. 314, 275 N.W. 288(1937); Cullings v. Goetz, 256 N.Y. 287, 176 N.E. 397 (1931); Ripple v. MahoningNat. Bank, 143 Ohio St. 614, 56 N.E.2d 289 (1944).10. Mahan-Jellico Coal co. v. Dulling, 282 Ky. 698, 139 S.W.2d 749 (1940); Busickv. Homeowners Loan Corporation, 91 N.H. 257, 18 A.2d 190 (1941); Leavitt v. TwinCounty Rental Co., 222 N.C. 81, 21 S.E.2d 890 (1942).11. Newman v. Sears, Roebuck & Co., 77 N.D. 466, 43 N.W.2d 411 (1950).12. State v. Columbus Hall Ass'n, 75 N.D. 275, 27 N.W.2d 664 (1947).[Vol. 37

Landlords and Tenant - Liability of Landlord for Defects in Leased Premises - Liability of Landlord to Tenant or Guest of Tenant

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Landlords and Tenant - Liability of Landlord for Defects in Leased Premises - Liability of Landlord to Tenant or Guest of Tenant

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