Friday, 24 March 2017

A Tenant's Emotional Damages may be Actual Damages

Written by Posted On Friday, 28 December 2007 00:00

Suppose a tenant finds him or herself living in a "slumlord" unit. Everything is deteriorated. Unsanitary conditions prevail. What is the tenant's recourse? Is he or she entitled to damages?

More specifically, is he or she entitled to damages for emotional distress? The answer is "yes" if you live in California's Second Appellate District, where the case of Un Sil McNairy et al. v. C.K. Realty et al. was heard.

In California, as in most, if not all, states, landlords have a legal duty to maintain units in a condition of habitability. Appliances and utility delivery systems are supposed to work; doors and windows should open and shut properly; buildings should be free of rodents and vermin; and on and on. Different jurisdictions may define these conditions differently and there always may be grey areas. Nonetheless, the basic principles remain.

In the case of McNairy v. C.K. Realty, it was abundantly clear that the premises were not maintained in a legal condition of habitability. The case was heard in Los Angeles Superior Court. Testimony showed that the Victoria Apartments, owned by Hee Cho, were in a deplorable condition. The tenants' expert witness testified that he had found thirty to thirty-five cockroaches in every unit that he had inspected. There was rust in the water, pigeon droppings on the units, inoperable electrical outlets, non-functioning heaters and air-conditioning units, a lack of hot and cold water, and on and on.

Thus, the Los Angeles Superior Court found damages in the amount of $5,000 in actual damages, $1,000 in special damages, and $4,000 in punitive damages. The landlord appealed. He argued that the actual damages could not, and should not, include any of the so-called emotional damages suffered by the tenants.

The appellate court rejected the arguments of the landlord. The court said that, in cases such as this, damages for emotional distress are included in actual damages.

In doing so, the court relied both upon earlier California cases as well as cases from other jurisdictions. They looked to a case against an insurance company, where a previous court had ruled, "emotional distress is a form of actual damage … ." Quoting from Black's Law Dictionary, the court wrote, "Generally, the residential tenant who has suffered a breach of the warranty [of habitability] does not lose money … discomfort and annoyance are the common injuries caused by the breach and hence the true nature of the general damages the tenant is claiming." It referred to a case involving an unauthorized recording of confidential information, and noted that, "… anxiety, embarrassment, humiliation, shame, depression, feelings of powerlessness, anguish, etc. these are actual damages."

Similar rulings were gleaned from court decisions in Arizona, Oregon, West Virginia and Vermont.

In all, the result was pretty clear. Landlords who do not maintain their premises according to commonly accepted standards of habitability will be liable for damages. And those damages will include emotional distress.

During the proceedings, the property was sold by Hee Cho. His gain from the sale was reported at $3.39 million. What a country.

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Bob Hunt

Bob Hunt is a former director of the National Association of Realtors and is author of the recently published book, "Real Estate the Ethical Way." A graduate of Princeton with a master's degree from UCLA in philosophy, Hunt has served as a U.S. Marine, Realtor association president in South Orange County, and director of the California Association of Realtors, and is an award-winning Realtor. Contact Bob at scbhunt@aol.com.

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