Daily Development for
Friday, March 8, 1995

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

LANDLORD/TENANT; EVICTION; RETALIATORY EVICTION: Utah Supreme Court adopts retaliatory eviction doctrine and implicitly contradicts specific provisions of Utah Landlord/Tenant Act in doing so. Building Monitoring Systems, Inc. v. Paxton, 905 P.2d 1215 (Utah 1995).

The actual holding of the case is not too problematic, at least when compared to other state court activism in this area. The court accepted the relatively conservative definition of retaliatory eviction provided by the Second Restatement of Property, which applies a five-prong test, including the requirements that the landlord be in the business of renting residential property and that there be a protective housing statute embodying a public purpose to insure proper conditions of housing. A comment to the Restatement quoted by the court indicates that there must be a good faith complaint of a bona fide defect.

The court further even narrowed the Restatement concept by adopting the New York approach: the landlord may evict the tenant at any time after repairs have been made (regardless of retaliatory motive) but the landlord has the burden to show that landlord gave the tenant reasonable opportunity to procure other housing before proceeding with eviction. (Of course, the landlord must lawfully terminate the tenancy and cannot breach a long term lease.)

Utah has a somewhat limited "implied warranty" statute, the Utah Fit Premises Act. Utah commentators have suggested that this Act was developed and "pushed" by landlord interests to preempt a more expansive tenant's rights law. In 1991, after the adoption of the Act, the Utah Supreme Court created a common law implied warranty concept somewhat broader than the Act. P.H. Investment v. Oliver, 818 P.2d 1018 (1991), fashioning some additional tenant remedies and holding that these were immune from statutory landlord defenses under the Act.

Under the Act, when the tenant complains to the landlord, the landlord has the option to respond by terminating the tenancy if the landlord concludes that the premises are unfit for habitation. If the landlord does not respond either by terminating or fixing, the tenant can send a second "three day notice" and then sue for injunctive relief and damages. The court comments that if the landlord were able to terminate early, then this would frustrate the tenant's ability to seek these remedies and carry out the purposes of the Act:

"It is obvious that if the owner were allowed to evict the renter upon receiving the first notice to correct or remedy a condition, the renter could not remain in possession long enough to exercise the rights afforded hims or her . . . The scheme of the Act would be frustrated and defeated by the short circuiting of the renter's rights." 905 P.2d at 1218.

Unfortunately, the court does not explain how its analysis fits with the landlord's statutory right to terminate following the tenant's first notice. Clearly this right frustrates the tenant's attempt to get the problem fixed or collect damages, but it is difficult to argue the right frustrates the Act, since it is in the Act. It appears that the court, following up on its 1991 activity, is again attacking the statute, but this time doing so more directly, voiding one portion of the Act because it conflicts implicitly with the Act's overall intent.

This analysis may be dicta in this case, because the tenant did not elect to rely only on the notice to the landlord under the Act, but instead complained directly to the Health Department (after first complaining to the landlord). Therefore, the holding of the case is that a retaliatory eviction is prohibited following a Health Department complaint, but both the Restatement and the language of the court would apply the concept as well to the situation where the tenant has complained only to the landlord.

Comment 1: Although the judicial avoidance of a specific statutory enactment is a relatively rare throwback to the judicial activitism of the 70's (and in Utah no less), the ultimate result in the case is likely to make a difference only in a few egregious cases in which tenants have the misfortune to be in a slum but the good fortune to have recourse to legal counsel to address the issue.

Comment 2: At one time, landlords rumbled that the retaliatory eviction concept would lead to the destruction of the private residential rental market. There were concerns about "perpetual tenants," who could easily engineer habitability defects (or at least alleged defects) with sufficient frequency, and without being detected as the guilty party), and then, with equal frequency, file complaints about such defects, thus insulating themselves from any termination of tenancy, increase in rent, or decrease in service. Any such action by the landlord would be branded "retaliation" for the tenant's complaint of the condition of the unit.

We hear much less about abuse of retaliatory eviction concepts lately, perhaps because the abuses never really happened. One would hope that this would be due to an improvement in housing conditions, leading to fewer tenant complaints. Another possibility is that underfunding of Legal Aid offices has forced such offices to take landlord/tenant law off the priority list, thus depriving tenants of counsel to represent them in retailiatory eviction claims.

Nevertheless, the intractable problems generated by the economic realities of slum housing remain with us. Antiquated and long neglected slum properties can be brought to a standard of "habitability" only with substantial investment. In many areas, landlords would have no ability to recoup that investment from rents. Harsh legal doctrines forcing them to make an uneconomic investment are likely to lead them either to abandon their properties or to adopt evasive tactics that may be even less helpful to tenants than the problems the doctrines address. In areas where repairs will result in higher rentals, many existing tenants would be unable to pay them. In any case the difficult lives of slum tenants are rendered more difficult, not less.

Quality housing is one of the vital "safety nets" that a prosperous society ought to provide to those who "fall out" of the capitalism machine. Capitalism contemplates social displacement, and most of us accept in principle that society ought to provide some level of decent existence for those with a legitimate displacement argument. We can't agree, of course, on what is a "legitimate displacement" and what is a "welfare dependent lifestyle." But we ought to stop pretending that we can insure "decent, safe and sanitary" housing by requiring private investors to provide it. They can't. They won't. They don't. It's a public responsibility.

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