Rose v. Long

BARNARD, P. J.

On September 20, 1951, the plaintiff leased to the defendant a one-story brick and steel building for use as a warehouse for the storage of personal property. The term of the lease was three years and the rental was payable monthly. The lease provided, among other things, that it was understood that the building was not in first-class

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repair and “that lessee takes said premises as is”; that the lessor should not be obligated to make or pay for any repairs or alterations of any kind whatsoever; and that “the lessee will, at his sole cost and expense, faithfully observe in the use of the premises, all municipal regulations and statutes now in force or which may hereafter be in force.”

On June 24, 1952, the Building Department of Orange County posted a notice on the leased property which stated that “This building is deemed unsafe for human occupancy,” under a section of the county building code, and that “It is unlawful for any person to occupy or reside in this building.” About the same time the county building department served a notice on the plaintiff purporting to require that certain repairs or improvements be commenced within 30 days and be completed within 90 days.

The suggested repairs were not made, and the plaintiff informed the defendant that it was her contention that the county had no authority to post such a notice, and that she would hold the defendant to the lease until such time as it was judicially decided that he must vacate. The head of the county building department testified that no eviction notice was ever served. On June 27, 1952, the defendant paid the rent for the period of June 20 to July 20. On August 19, 1952, defendant’s counsel wrote a letter to the plaintiff stating that it was his understanding that the plaintiff was obligated to correct the condition that existed, and that he had instructed the defendant to remove from the premises immediately, and make no further rent payments. It is conceded that no further steps were taken by the county building department pursuant to this notice, and that no attempt was made by the defendant to secure a variance from the building department or to seek a judicial determination of his right to continue to occupy the premises.

By her complaint in this action the plaintiff sought to recover the rental called for by the lease for the months of July, August, September and October, 1952. In his answer the defendant set up the notice which had been posted on the premises by the county building department, and alleged that the plaintiff had failed and refused to correct the existing condition within the time required by law. The court found, among other things, that all of the allegations of the complaint are true; that after this notice was posted on the leased property the plaintiff protested to the building department