Opinion
54161.
SUBMITTED JUNE 27, 1977.
DECIDED SEPTEMBER 7, 1977.
Action on lease agreement. Fulton State Court. Before Judge Wright.
George H. Freisem, III, for appellant.
John C. Tyler, for appellee.
Plaintiff who had leased his house to defendant brought this suit for rent.
The trial court after making findings of fact, concluded as a matter of law that defendant had established the affirmative defense of constructive eviction and a judgment for defendant was entered. Held:
Two essential elements must be shown to establish the defense of constructive eviction. They are: (1) That the landlord in consequence of his failure to keep the rented building repaired allowed it to deteriorate to such an extent that it had become an unfit place for the defendant to carry on the business for which it was rented, and (2) that it could not be restored to a fit condition by ordinary repairs which could be made without unreasonable interruption of the tenant's business. Overstreet v. Rhodes, 212 Ga. 521, 523 ( 93 S.E.2d 715); Alston v. Ga. Credit Counsel, 140 Ga. App. 784 ( 232 S.E.2d 134). These elements were not supported by the evidence. It was shown that water leaked into the house on two occasions in June 1976, but it was not established that this leakage caused the house to be an unfit place to live. Secondly, there was not the slightest bit of evidence concerning the second element. Accordingly, as the evidence does not authorize the defense of constructive eviction, it was error to grant defendant a judgment for that reason.
Judgment reversed. McMurray and Smith, JJ., concur.