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CASE 48-2
TUCKER v. HAYFORD
Washington Court of Appeals, Division 3, 2003
118 Wash App. 246, 75 P.3d 980
http://scholar.google.com/scholar_case?case=4713939053717898068&hl=en&as_sdt=2&as_vis=1&oi=scholar
Sweeney, J.
We again note that a claim for personal injuries by a tenant can be premised on three distinct
legal theories: contract (a rental agreement), common law obligations imposed on a
landlord, and the Washington Residential Landlord-Tenant Act of 1973 (Landlord-Tenant
Act), [citation], * * *
Here, the tenants claim that they became sick part of their tenancy. The trial judge
dismissed all of their causes of action—contract, Landlord-Tenant Act, and common law—
concluding that the Landlord-Tenant Act limited all rights to those specifically enumerated
in the act. We conclude that the tenants’ showing on summary judgment is sufficient to
support causes of action based on contract, the Landlord-Tenant Act, and the common law.
We therefore reverse the summary dismissal of their claims.
Facts
Robert Hayford bought a lot and mobile home in Kennewick, Washington from Mike Kirby
in 1994. A domestic well supplied water to the home. The well water was tested on
Mr. Hayford “thumbed through” the report but depended on his real estate agent to call
any problems to his attention. And the agent apparently did not.
Mr. Hayford leased the home to Don Tucker and Shalee Miller (now Tucker) in October
of 1998. Mr. and Ms. Tucker asked if the well water was drinkable. Mr. Hayford said it was
as long as a “Brita” filter was used. He said that the nitrates were a bit high.
The Tuckers have four children, one was born after they moved out of the home. The
The Tuckers moved out of the home on May 15, 2000. They sued Mr. Hayford for
damages for personal injury arising from contaminated water. [The trial court granted
Hayford’s motion for summary judgment.]
* * *
Contract Claims
Obligations Imposed by This Contract
* * * The tenant may recover for personal injuries caused by the landlord’s breach of a
repair covenant only if the unrepaired defect created an unreasonable risk of harm to the
tenant. The Restatement (Second) of Torts §357 (1965) provides that the lessor of land is
liable if (a) the lessor has contracted to keep the land in repair; (b) the disrepair creates an
unreasonable risk that performance of the lessor’s agreement would have prevented; and (c)
the lessor fails to exercise reasonable care in performing the agreement. [Citation.] The
contract defines the extent of the duty when a landlord’s duty arises out of a covenant.
* * *
Notice * * * under this provision of the Restatement becomes an issue when the
* * *
Quiet Enjoyment
No Washington case directly addresses the impact of drinking water on one’s quiet
enjoyment of his home. Washington does, however, recognize the relationship of water and
habitability. In [citation] the court held that without water, a property is uninhabitable.
[Citation.] * * * Other jurisdictions have also held that a property without potable water is
uninhabitable.
It is well settled that unsafe drinking water renders a home uninhabitable. And that by
definition interferes with the quiet enjoyment of the home. * * *
Major Maintenance and Repair
A health inspector recommended that this well be tested at least annually for bacteria. The
question then is whether a reasonable person knew or in the exercise of ordinary care should
testing. That is a sufficient showing to support a breach of the major maintenance and repair
covenant of this lease, if proved.
Duties at Common Law
Traditional Common Law Landlord Liability
Common law landlord liability requires a showing: “(1) latent or hidden defects in the
leasehold (2) that existed at the commencement of the leasehold (3) of which the landlord
had actual knowledge (4) and of which the landlord failed to inform the tenant.” [Citation.]
The landlord need not discover obscure defects or dangers, nor does the law impose any
duty to repair defective conditions. [Citation.] A “landlord is liable only for failing to inform
the tenant of known dangers which are not likely to be discovered by the tenant.” [Citation.]
The Tuckers moved into this home in 1998. The well was last tested in 1993. It was not
* * *
Implied Warranty of Habitability
A landlord is subject to liability for physical harm caused to the tenant and others upon the
leased property with the consent of the tenant or his subtenant by a dangerous condition
existing before or arising after the tenant has taken possession, if he has failed to exercise
reasonable care to repair the condition and the existence of the condition is in violation of:
1. an implied duty of habitability; or
2. a duty created by a statute or administrative regulation.
Restatement (Second) of Property §17.6 (1977).
* * *
Residential Landlord-Tenant Act
* * *
The Uniform Residential Landlord and Tenant Act (Uniform Landlord-Tenant Act) was
drafted by the National Conference of Commissions on Uniform State Laws in 1972.
Washington’s Landlord-Tenant Act
The Landlord-Tenant Act requires the landlord to “keep the premises fit for human
habitation” and to particularly maintain the premises in substantial compliance with health
or safety codes for the benefit of the tenant. [Citation.] It requires the landlord to make
repairs, except in the case of normal wear and tear, “necessary to put and keep the premises
in as good condition as it by law or rental agreement should have been, at the
commencement of the tenancy.” [Citation.]
It lists the landlord’s obligations. [Citation.] And it lists the tenant’s remedies: (1)
terminate the rental agreement; (2) “[b]ring an action in an appropriate court, or at
Repair — Absent a specitic provision in the lease or a statutory duty to do
so, the landlord has no obligation to repair or restore the leased premises.
She is obligated, however, to repair and keep in safe condition those parts of
the premises that remain under her control, such as the stairways, elevators,
lobbies, and other common areas. The landlord is responsible for external
C. CONCURRENT OWNERSHIP
Two or more persons who hold title concurrently have concurrent ownership
and are generally known as co-tenants. Each is entitled to an undivided
interest in the entire property, and neither has a claim to any specitic part of
it. Each may have an equal undivided interest, or one may have a larger
undivided share than the other.
*** Chapter Outcome ***
Identify and explain the various forms of concurrent ownership of real property.
Tenancy in Common
• This is the most frequently used form of concurrent ownership.
• Each co-owner has both an undivided interest and the right to
possession but claims no specitic portion of the property.
• There is no right of survivorship, so the interests of tenants in common
may be devised by will or pass by intestate succession.
• By statute in all states, a transfer of title to two or more persons is
presumed to create a tenancy in common.
Joint Tenancy
The most signiticant feature of joint tenancy is the right of survivorship. On
the death of a joint tenant, title to the entire property passes by operation of
law to the survivor or survivors. Neither the heirs of the deceased joint
tenant nor his general creditors have a claim to his interest, and a joint
tenant cannot transfer his interest by executing a will. However, any joint
tenant may sever the joint tenancy by conveying or mortgaging his interest
to a third party. To sever a joint tenancy is to forfeit the right of survivorship:
following severance, the tenancy becomes a tenancy in common among the
remaining joint tenants and the transferee.
CASE 48-3
KETTLER v. SECURITY NAT. BANK OF SIOUX CITY
Court of Appeals of Iowa, 2011
805 N.W.2D 817
http://scholar.google.com/scholar_case?
q=805+N.W.2D+817+&hl=en&as_sdt=2,34&case=4793469912787190935&scilh=0
Vogel, J.
[Fay and Loretta O'Connell were married in 1940 and owned their residence along with
several bank accounts as joint tenants, with rights of survivorship. They had no children.
Loretta had a sister, Mary Ann Raher, and two brothers, Milo Kettler and Robert Kettler. On
November 21, 2005, the couple executed wills, both directing the residue of their estates
pass to the survivor. On the second death, after certain specific bequests, the residual estate
would pass to Milo and Robert. Loretta's sister was not included as a beneficiary in the
residual estate of either Fay or Loretta, but was to receive $10,000 under Loretta's will. On
that same date, Loretta signed a power of attorney form, appointing Fay as her
attorney-in-fact, with Milo and Robert as successor attorneys-in-fact. In the summer of
2007, Loretta began suffering the debilitating effects of Alzheimer's disease, while Fay
suffered from a terminal illness. Milo and Loretta's niece, Margaret Woolworth, filed an
Fay requested Mary Ann come from her home in the state of Washington to Iowa and
paid for her travel. While accompanied by Mary Ann, Fay went to the banks where he and
Loretta had joint accounts and withdrew all the funds from those accounts. Fay deposited the
funds into new accounts in his name alone and designated all but the money market account
as payable-on-death to Mary Ann. Additionally, Fay executed a general power of attorney
designating Mary Ann as Fay's attorney in fact. He also changed his will by setting up a trust
for the care of Loretta, if she survived him. If Loretta did not survive him or upon Loretta's
death, after certain bequests, the balance of the trust assets was left to Mary Ann. Milo and
Fay died on August 9, 2007. In October 2007, Loretta, Milo, and Robert filed a petition
naming the personal representative of Fay's estate, Security National Bank (SNB), and Mary
Ann as defendants alleging conversion of Loretta's property by Fay and Mary Ann. In
February 2009, the district court issued a summary judgment ruling. The district court found
that because Fay did not intend to sever and could not destroy the joint tenancy, the assets
remained held in joint tenancy with rights of survivorship in Loretta. The district court held
certificates of deposit are void, and the ownership of these accounts and CDs shall be
restored to the status existing immediately preceding the transfers. Mary Ann and SNB
appeal from this order.]
"Joint tenancy property is property held by two or more parties jointly, with equal rights
to share in the enjoyment of the whole property during their lives, and a right of survivorship
which allows the surviving party to enjoy the entire estate." [Citations.] A joint tenant's right
to the joint tenancy property can be described as "an undivided interest in the entire estate to
which is attached the right of survivorship." [Citations.] There are two separate features of
joint tenancy, the "proportional interest" in the undivided interest in the property and the
[Citations.] A joint tenancy may be severed by the actions of one or both of the joint
tenants. [Citations.] Any severance of joint tenancy creates a tenancy in common. Id.
Traditionally, Iowa followed the four unities of title test, that is to create a joint tenancy
the four unities had to be present—interest, title, time, and possession. [Citation.] "To sever
or terminate a joint tenancy, a joint tenant simply had to destroy one of the unities."
* * *
In the present case, the bank accounts were held in joint tenancy, with both Fay and
Loretta having an undivided interest in the entire estate. [Citation.] Each joint tenant was
permitted to make withdrawals from the account, as was specified in the account agreement.
Ultimately, one joint tenant was permitted to deplete the account. [Citations.] Consequently,
deposited both his and Loretta's proportional interests into accounts in his name only and
payable-on-death to Mary Ann.
* * *
* * * Each joint tenant has an undivided interest in the entire account, but each joint
tenant's proportional share may be determined. [Citation.] In a case where a joint tenant
* * * [Under] Iowa law * * * each joint tenant retains a right to terminate the joint
tenancy and to do what each wishes to do with his or her proportional share of the account.
From his actions it is clear Fay intended to terminate Loretta's right of survivorship to
the joint tenancy funds. Even though the withdrawals from the joint tenancy accounts were
valid transactions, this does not determine nor destroy the proportional interests as between
Fay and Loretta. [Citation.] Fay had a right to withdraw all of the funds and even to take
* * *
REVERSED AND REMANDED.
Tenancy by the Entireties
Not recognized by all states, tenancy by the entireties is co-ownership, with
survivorship, by husband and wife; it is a form of ownership in which neither
spouse may convey separately his or her interest during life. Divorce
terminates this tenancy.
NOTE: See Figure 48-3: Rights of Concurrent Owners.
Community Property
Under the community property system, one-half of any property acquired by
either the husband or the wife during their marriage belongs to each spouse.
The only property that belongs separately to either spouse is property
acquired before the marriage or acquired subsequent to marriage by gift or
inheritance. On the death of either spouse, one-half of the community
property belongs outright to the survivor; the interest of the deceased
spouse in the other half may go to the heirs of the decedent or as directed
by will. The community property system is used in Arizona, California, Idaho,
Louisiana, Nevada, New Mexico, Puerto Rico Texas, Washington, and
Wisconsin.
Condominiums
The purchaser of a condominium both acquires ownership of the unit and
becomes a tenant in common with respect to common facilities, such as the
land, hallways, parking areas, and so forth. The transfer of a condominium
conveys both the separate ownership of the unit and the share in the
common elements. All states have statutes authorizing this form of
ownership.
D. NONPOSSESSORY INTERESTS
A nonpossessory interest in land entitles the holder to use the land or to take
something from it — but not to possess the land. Includes easements,
pro"ts a prendre and licenses.
Definition of Easements
An easement is a limited right to use another’s land in a specitic manner. An
easement is created by the acts of the parties or by operation of law; it has
all the attributes of an estate in the land. Easements may exist for many
di'erent uses, such as to erect power lines, to run a ditch or a driveway
across another’s land, or to lay pipe under the surface.
Types of Easements
CASE 48-4
BORTON v. FOREST HILLS COUNTRY CLUB
Missouri Court of Appeals, Eastern District, Division Five, 1996
926 S.W. 232
http://scholar.google.com/scholar_case?case=18361502037276936849&hl=en&as_sdt=2&as_vis=1&oi=scholar
Ahrens, J.
Plaintiffs, Gene and Deborah Borton, appeal from the trial court’s grant of summary
judgment in favor of defendant, Forest Hills Country Club on plaintiffs’ claims for
injunctive relief and money damages due to golf balls hit onto their property from
defendant’s golf course. Plaintiffs also appeal from the summary judgment in ; favor of
defendant on its counterclaim asserting it had gained an easement allowing its members to
hit errant golf balls onto plaintiffs’ property. We reverse and remand.
The developer of defendant’s golf course began to sell lots for residential use adjacent to
the golf course in 1963. The developer filed and recorded a set of deed restrictions on all the
residential lots adjacent to the golf course in November, 1963. Paragraph 11 of these deed
restrictions recites:
All owners and occupants of any lot in the Forest Hills Club Estates Subdivision
shall extend to one person, in a group of members or guests playing a normal game
of golf on the Forest Hills Golf and Country Club, or their caddy, the courtesy of
allowing such person or caddy the privilege of retrieving any and all errant golf balls
* * *
Plaintiffs concede that paragraph 11 of the deed restriction gives defendant and its
members some right with respect to retrieving errant golf balls. Plaintiffs argue, however,
that the right created in paragraph 11 is simply a license. Defendant contends it has an
easement over the Borton’s property, either by express grant via paragraph 11 in the deed
restriction or by prescription.
Both a license and easement give the grantee the right to go onto the grantor’s property
and are binding on successive landowners. [Citations.] Thus, plaintiffs do not have the
power to revoke or modify the rights granted to defendant in paragraph 11 of the deed
restrictions. Therefore, the deed restrictions in paragraph 11 are in the nature of an easement
in favor of defendant and its members to retrieve errant golf balls hit onto plaintiffs’
property during a normal game of golf.
* * *
*** Chapter Outcome ***
Identify and describe the various ways in which an easement may be created.
Creation of Easements
By express grant or reservation— This is the most common way to
create an easement. As in the example, Liz used actual words to grant an
easement to Bill.
By implied grant or reservation — An easement may be created when
the owner of adjacent properties makes an apparent and permanent use in
the nature of an easement, then conveys one of the properties without
mentioning an easement.
a portion of land owned by another in a way that is (1) adverse to the rightful
owner’s use, (2) open, and (3) that continues uninterrupted for a specitic
period (varies from state to state).
Profits `a Prendre
