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thereof "jointly and severally liable " for failing to prevent

" or abate nuisances or violations of the Sanitary Code in such premises.

It has been quite conclusively established, however, that the effect of these provisions is merely to make the owner of property the party responsible to the governmental authorities for its reasonably proper and sanitary condition; that as between the owner and the tenant, these statutes do not undertake to impose liability upon the former, except for the proper maintenance of such portions of buildings as the halls, stairways and other parts under the landlord's control and intended for the tenants' common use. Thus, it has been held that the falling of a ceiling in an apartment, if not directly caused by the landlord's negligent maintenance of the roof, pipes or other portions of the building that he controls, does not make him liable to the tenant for damages sustained by the latter by reason thereof, it not being the landlord's duty to keep the ceiling in repair. 10

The Tenement House Commissioner of New York City states 11 that in his opinion

“it was never intended that the owner be obliged to go in the apartment and keep any part of the apartment clean."

He also states that:

“The proper interpretation to be given this section is that the Tenement House Department shall compel the owner to see that

• See annotation to cited sections of Tenement House Law, McKinney's Consol. Laws of N. Y., Vol. 60.

10 Goetchins v. Gale, 57 Misc. 192, 108 N. Y. Supp. 1079; Stevens v. Schweizer, 94 Misc. 646, 158 N. Y. Supp. 465, aff'd in 174 App. Div. 863 (mem.). See also, Ellnor v. Fischman (App. Term, 1st Dept.), 186 N. Y. Supp. 618.

11 See Appendix F.

the unsanitary conditions—if there are any therein existing—be removed and that the tenant occupying the specific apartment in which the conditions prevail should be presumed to be the creator of the unsanitary conditions and therefore responsible for the same, and should be compelled to remove them.

“The Tenement House Department, however, under the law can hold only the landlord responsible, and therefore it is my opinion that that section 12 should be further construed to mean that the landlord must see to it that the tenant remove the condition: in other words, compel the tenant to do so; and upon failure of the tenant to remove unsanitary conditions complained of by the Tenement House Department, that then the landlord may bring proceedings to have him removed as an undesirable tenant under the very rent laws now in force.”

The practice of landlords, formerly quite general, periodically to redecorate their tenants' apartments, has also contributed to the impression prevalent in the public mind that it is incumbent upon them to do so. Of this, the Tenement House Commissioner appropriately says:

“There never was any law on the statute books compelling a landlord to decorate his tenant's apartment. Before the housing shortage during the period when the housing supply exceeded the demand-it was invariably the custom of landlords to do so, but it was done voluntarily under the stress of competition and not by any compelling law."

The voluntary assumption of such burdens does not create an obligation to continue to perform them.13

All this, of course, does not mean that the lease may not specifically and validly provide that repairs of any specified sort shall be made by one party or the other-by landlord or by tenant. Such a provision in a lease is quite usual, and is enforceable just as any other contract.14

12 Tenement House Law, $ 104.

13 Elefante v. Pizitz, 182 App. Div. 819, 169 N. Y. Supp. 910, affirmed 230 N. Y. 567; Allen v. Murray Benefit Fund (Supreme Court, Yates County), 189 N. Y. Supp. 201, 205.

Breach of a contract of this sort, however, gives only such rights as usually accrue by reason of a breach of contract, namely, the right to recover damages.15

The measure of damages of the tenant in such an action is the cost to the tenant of making such repairs himself.16 He may either bring an independent action to recover such damages, or else set up the amount of such damages as a counterclaim to the landlord's action to recover rent or his proceeding to recover possession because of the nonpayment of the rent. The fact that such repairs remain unmade does not prevent the landlord from bringing his action for rent or from bringing summary proceedings to recover possession of his property on account of its nonpayment. The doing of the repairs is not what is technically called in the law a "condition precedent” to the landlord's recovering his rent or in default thereof his property (subject, of course, to any counterclaim). 17

And it has been held that such a covenant to make repairs is “personal”; that is, it binds only the landlord who makes it, and if he should subsequently sell the property, the new

14 Cohen v. Margolies, 192 App. Div. 217, 182 N. Y. Supp. 442; Frank v. Bowman Automobile Co., 195 App. Div. 377, 186 N. Y. Supp. 402; Brinsmade v. Gormully (App. Term, 1st Dept.), 185 N. Y. Supp. 106.

16 Thompson Co. v. Durant Co., 144 N. Y. 34, 47; Campbell v. Poland Spring Co., 196 App. Div. 331, 187 N. Y. Supp. 643; 810 West End Ave., Inc., v. Frankel, 113 Misc. 338, 184 N. Y. Supp. 554, and cases cited; McAdam on “Landlord and Tenant,” Vol. II, p. 1316, p. 1324.

16 Baldwin v. Cohen, 132 App. Div. 87; McAdam on “Landlord and Tenant," Vol. II, p. 1316 et seq.; Schick v. Fleischhauer, 26 App. Div. 210.

17 Campbell v. Poland Spring Co., 196 App. Div. 331, 337, 187 N. Y. Supp.

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owner is under no such obligation, unless the lease expressly provides that this covenant shall be binding upon the landlord and his successors in interest. If such a provision is included in the lease, those who receive the property from the landlord making the agreement will be bound thereby; otherwise, all that the tenant has is a right of action against the owner who made the lease containing this agreement and left it unperformed. 18

A covenant to "keep the premises in good and tenantable repair” has been held to obligate the landlord to keep the grounds and gardens surrounding a house in condition, as well as the house itself. 19

In the light of the fact that when there is no agreement specifying otherwise, the burden of making repairs falls legally on the tenant, it may be well to note here a decision stating that the tenant is entitled in the first instance, at any rate, to get a “completed apartment,” fit for "human habitation.” The landlord in this case leased an apartment from a certain date, and on that date was unable to give possession, there being construction work proceeding on the premises so that they were uninhabitable for a month and a half after the date set. The court said:

"An apartment in a tenement house is let and hired for human habitation, and in the light of the law applicable to the construction and occupation of such houses, and the proof given by the defendant (tenant), it was undoubtedly the intention of the parties to the lease that the premises demised were a completed apartment, and not merely a space on the first floor, without windows, doors, or floors, bounded by unplastered walls, and

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18 810 West End Ave., Inc., 0. Frankel (App. Term, 1st Dept.), 113 Misc. 338, 184 N. Y. Supp. 554.

19 Allen v. Murray Benefit Fund (Supreme Court, Yates County, June, 1920, Kelly, J.), 112 Misc. 156, 182 N. Y. Supp. 369.

lacking the necessary plumbing. Further, the jury would have been authorized in finding that the tenant was prevented from taking possession because of the acts of the landlord, its contractors and servants.” 20

It was held in this case that the tenant could, under such circumstances, either rescind the lease or else recover damages from the landlord for his failure to give possession of a habitable apartment as agreed.

FORFEITURE CLAUSES IN LEASES

Many leases contain a provision that the tenant shall make "all necessary repairs,” and that in the event of his failure to do so, the landlord may at his option declare such lease forfeited. Such a forfeiture clause gives the landlord the right to re-enter by bringing an ejectment suit, but has been held not to confer upon him the right to bring summary proceedings for the tenant's removal.21

It would seem, however, that if the lease expressly provided that the landlord might declare the term at an end in the event of failure to make repairs as agreed, the landlord might serve such declaration and then proceed by summary proceedings to oust the tenant as a holdover, provided he came within the provisions of the emergency laws relating to "holdover” proceedings.

Occasionally leases provide that the landlord shall in the event of breach of covenant have both remedies, the right of re-entry and the right of summary dispossess. It has been held that such remedies are not inconsistent, and that the

30 163 East 36th St. Corp. v. Stockbridge (App. Term), 114 Misc. 98, 185 N. Y. Supp. 577.

21 Davis Bros. Realty Corp., Inc., v. Harte, 195 App. Div. 403, 186 N. Y. Supp. 324.

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