Opinion
32993.
DECIDED MAY 19, 1950.
Action for damages; from Fulton Superior Court — Judge Pharr. January 14, 1950.
James G. Lamar, John Kirby, Robert Cagle, for plaintiff.
Victor K. Meador, for defendant.
The petition by a property owner against a former tenant set forth causes of action for the breach of express and implied covenants and the court erred in sustaining the general demurrer thereto.
DECIDED MAY 19, 1950.
Esther L. Martin sued Mrs. C. P. Medlin for alleged damage to her property. The amended petition alleged in substance: that the plaintiff owned certain residential property in Atlanta registered with the O.P.A. as a nine-room one-family domicile with a double garage; that on August 29, 1942, the plaintiff and the defendant entered into an oral agreement whereby the defendant would occupy such premises as a tenant at will and would make necessary repairs at her own expense, deducting any such expense from the monthly rental for the premises; that the defendant did deduct moneys from the monthly rentals deceitfully representing that she had made all necessary repairs to the premises to keep them in a wholesome and habitable state; that in fact the defendant had expended no money whatever for repairs and had allowed the premises to deteriorate and waste away to the plaintiff's damage; that the defendant converted the moneys so deducted to her own use; that during the defendant's occupancy, she, without authority of the plaintiff, wilfully converted the premises into a "so-called rooming house" and rented rooms to transients and others who applied at her door for lodging; that the defendant allowed the premises to be used as "a house of assignation and did permit all manner of license and abuse of law, order and decency to take place," which reduced the value of the premises; that the defendant ruined the reputation of such property by allowing it to become known as a "house of assignation" and that because of such, the plaintiff became unable to rent any portion of the property to respectable people, to her damage; that the defendant failed and refused to maintain the premises in any semblance of cleanliness, and as a result, the premises became so filthy as to become unfit for human habitation and so abhorrent to the sensibilities as to render the renting of any portion of the premises impossible; that because of the reputation of the house as used by the defendant, the plaintiff had been harassed by all manner of undesirable callers who wished to use the premises for the purpose of a "house," to plaintiff's shame and mental anguish; that, but for such acts of the defendant, the plaintiff would have been able to rent portions of the premises for $100 per month, but that the plaintiff had been unable to do so by virtue of such acts; that "the negligent and wilful failure of the defendant to keep the premises clean consisted of allowing the various roomers to vomit and otherwise defile the various rooms of the house and leave such filth with no effort to clean it up, staining the walls and floors to such an extent that it was well-nigh impossible to clean them, such omissions continuing over a period of years during which defendant was the tenant of the premises, to petitioner's damage"; that because of such accumulation of filth it was necessary for the plaintiff to hire cleaners at the expenditure of large sums of money to scrape human and other refuse from the walls, to the plaintiff's damage; that it became necessary for the plaintiff to have the entire premises fumigated and sprayed to eliminate rodents, bedbugs, cockroaches, fleas and other insects and "varmints" which flourish in filth; that due to defendant's failure to repair the premises with the money so withheld the entire house had reached such a state of dilapidation as to be uninhabitable at the time the defendant vacated the premises; that during her tenancy, the defendant unlawfully rented the double garage to one Beckham, who used the garage for a repair shop, abusing it and storing therein large quantities of highly inflammable materials, constituting a hazard to the entire premises; that when the defendant vacated the premises she wilfully and unlawfully left a water bill outstanding and that the plaintiff was forced to pay said bill to prevent discontinuance of water service to the premises, causing unnecessary trouble and expense; that during such tenancy, the defendant procured to be installed certain electrical wiring which was not approved by the City of Atlanta as required by ordinances of said city; that such wiring had been condemned by the City of Atlanta as being dangerous and hazardous and contrary to city ordinances; that such wiring was installed in wanton disregard of the plaintiff's right in such property; that because of the condemnation of such wiring, the plaintiff had been deprived of electrical lighting for a long period of time while new wiring was being installed; that the plaintiff expended large sums of money for such new wiring; "that due to defendant's gross neglect, and wilful and wanton abuse and wasting of petitioner's property, petitioner has been forced to expend large sums of money for necessary repairs in order to make the premises habitable and safe for human occupancy, to her damage and for which she sues"; that the plaintiff had been damaged in the sum of $3500. The defendant filed a general demurrer and numerous special demurrers. The court sustained the general demurrer and dismissed the action, and the plaintiff excepted.
(a) In a rental contract between landlord and tenant, a covenant is raised, by implication of law in the absence of express covenants in reference thereto, that the tenant will so use the rented property that no unnecessary or substantial injury shall be done to it. 51 C.J.S. § 261, p. 902; 32 Am. Jur., § 779, p. 665; 18 Am. Eng. Enc. of Law, p. 246; 4 Thompson on Real Property, p. 108, § 1610. "Independently of covenant, a tenant is required to return the premises at the end of the term in substantially the same condition as when received, subject to reasonable use." 51 C.J.S. § 408, p. 1156. See also: Carlin v. Ritter, 68 Md. 478 ( 13 A. 370); Delano v. Smith, 206 Mass. 370 ( 92 N.E. 500); 32 Am. Jur. § 802, p. 684; 64 L.R.A. 649; 4 Thompson on Real Property, p. 116, § 1614. The above stated principles of law are covered in Georgia by Code § 61-109, as follows: "The tenant has no right beyond the use of the land and tenements rented to him and such privileges as are necessary to the enjoyment of his use. He may not cut or destroy growing trees, remove permanent fixtures, or otherwise injure the property. He may use other timber for firewood and the pasturage for his cattle." Though we could find no case in Georgia which involved this principle of law, and whose facts were closely analogous to those in the instant case, the general law applicable in Georgia on the subject was recognized by the court in American Grecian Turpentine Corp. v. Harper, 29 Ga. App. 101 (2) ( 114 S.E. 224), as being that "a tenant is under a duty to exercise ordinary care and diligence to prevent damage to the rented premises, and such duty is by implication a part of the lease contract." In view of this, the plaintiff's petition stated a good cause of action for damage to the rented premises as against a general demurrer. It alleges substantial damage to the premises due to improper use and negligent repairs.
(b) The plaintiff seeks as one element of her damages the breach of an express covenant to keep the premises in necessary repair. It is not clear from the allegations whether she seeks damages for the alleged injury to the premises because of such breach, or seeks to recover as damages the money deducted from the rent for the purpose of making necessary repairs but never used for such. However, we are not concerned with that question as the sole question for determination before the court now is the sufficiency of the petition as against a general demurrer.
(c) The petition alleges injury to the value of the premises due to the alleged use of the premises by the defendant as a "house of assignation." "In absence of express covenants to the contrary, there is in every lease an implied obligation on the part of the lessee to use the property lawfully and for lawful purposes." 51 C.J.S. p. 1021, § 335. The maintenance of a lewd house is unlawful. Code, § 26-6102. Unless covenanted otherwise, a tenant has no right to use the rented premises for a purpose not contemplated by the parties, and materially different from the use of which the premises were apparently intended. Asa G. Candler Inc. v. Ga. Theater Co., 148 Ga. 188 ( 96 S.E. 226). The plaintiff alleged that the purpose for which the premises were rented was use as a one-family domicile, and if the defendant did in fact convert the premises into a house of assignation and by reason thereof injured the value of the property, she would be liable for any injury occasioned by her breach of the implied covenant to use the premises lawfully.
The court erred in sustaining the general demurrer to the petition and in dismissing the action.
Judgment reversed. Sutton, C.J., and Worrill, J., concur.