propst v. mcneil_arkansas landlord

Propst v. McNeill: Arkansas Landlord-Tenant Law, A Time for Change

It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.

Oliver Wendell Holmes1

I. INTRODUCTION

In November of 1996, the Arkansas Supreme Court refused to impose tort liability on a landlord for damage to a tenant=s property located on the leased premises.2 The court indicated that it has no intention of budging from the rule in Arkansas that Aunless a landlord agrees with his tenant to repair leased premises, he cannot, in the absence of statute, be compelled to do so or be held liable for repairs.@3 A landlord in Arkansas, then, has no duty to keep the leased premises in good repair, and, as a result, the landlord cannot be held liable in tort for damages if the tenant, or his property, were injured due to the landlord=s failure to repair a defect.

This rule is based upon the common law doctrine of caveat lessee, meaning Alessee beware.@4 The doctrine stands for the proposition that the lessee, rather than the landlord, bears the duty to inspect the premises fully before entering into the lease agreement, and therefore is charged with having knowledge of the conditions of the property at the time of the agreement. Essentially, the tenant takes the property Aas is@ and the landlord owes no further duty to repair the premises. This doctrine grew out of the common law approach that viewed a lease as a conveyance, or sale of the property, for the lease period as opposed to a contract of mutual rights and obligations between the parties.5

Though Arkansas began to follow this rule over a hundred years ago,6 the rule was formulated in Feudal England. The rationale underlying the old common law doctrine has long since disappeared. Virtually every other jurisdiction in the United States, either by legislation, judicial decision, or both, has eliminated or dramatically curtailed caveat lessee, providing greater protections for tenants.7 This case note will argue that it is time for Arkansas to do the same.

After discussing the Propst case and the court=s decision not to depart from the traditional common law rule, this case note will survey the recent erosion of caveat lessee in other jurisdictions and put Arkansas=s adherence to the common law doctrine in full perspective. Finally, this case note will analyze the Propst decision in light of these developments and argue that the Arkansas Supreme Court should have taken steps to reform Arkansas landlord-tenant law.

1. Oliver Wendell Holmes, The Path of Law, 10 HARV. L. REV. 457, 469 (1897). 2. Propst v. McNeill, 932 S.W.2d 766 (Ark. 1996). 3. Id. at 767. 4. See generally JESSE DUKEMINIER & JAMES E. KRIER, PROPERTY 514 (3d ed. 1993); JOHN E. CRIBBETT & CORWIN W. JOHNSON, PRINCIPLES OF THE LAW OF PROPERTY 250 (3d ed. 1989); JOSEPH A. PAGE, THE LAW OF PREMISES LIABILITY 9.1 (2d ed. 1988). 5. Id. 6. Haizlip v. Rosenberg, 39 S.W. 60 (Ark. 1897) (holding that in the absence of a statute, or a covenant to repair, a landlord is not liable to a tenant for damages caused by a defect). 7. See infra note 121.

102 ARKANSAS LAW REVIEW [Vol. 51:nnn

II. STATEMENT OF FACTS

On January 3, 1994, the Municipal Airport Commission of the City of Walnut Ridge, Arkansas, leased Hangar Number 4 of the Walnut Ridge Municipal Airport to James Propst for one year at $480 per year.8 Five months later, a wind storm damaged the hangar.9 As a result, Propst=s airplane incurred approximately $13,000 in damage.10 Propst brought suit against Dan McNeill as the Commission Chairman, the Walnut Ridge Airport, and the City of Walnut Ridge, alleging that the Commission11 Anegligently failed to (1) secure the hangar to its foundation, (2) replace defective structural supports, or (3) warn Propst of the hangar=s defective condition.@12

In response, the Commission invoked the age-old doctrine of caveat lessee. The Commission denied liability for any damage to Propst=s property and asserted that, under Arkansas=s landlord-tenant law, the Commission was under no duty to Propst to repair or maintain the hangar since the Commission did not promise to do so in the lease.13 The trial court agreed with the Commission and granted the Commission summary judgment.14 On appeal to the Supreme Court of Arkansas, Propst argued that the court should modernize Arkansas=s landlord-tenant law by abolishing the doctrine of caveat lessee and by requiring landlords to act as reasonable persons under all circumstances.15

Propst pointed out that the traditional doctrine of caveat lessee is outdated and has been replaced in a number of other jurisdictions either by statute or judicial decree.16 Propst contended that Arkansas has become more urbanized over the years.17 As a consequence, modern tenants are less equipped to inspect and judge the structural integrity of buildings and discover potentially dangerous defects.18 Landlords, on the other hand, own the buildings and should be more familiar with their property and are therefore in a better position to repair defects and prevent potential harm to tenants.19

Furthermore, Propst argued that even if Arkansas should still be governed by the common law doctrine, Arkansas should recognize the four traditional exceptions to the old rule which impose tort liability on a landlord for damages Aresulting from defective and dangerous conditions if the injury is attributable to (1) a hidden danger in the premises of which the landlord, but not the tenant, was aware; (2) premises leased for public use; (3) premises retained under the landlord=s control; or (4) premises negligently repaired by the landlord.@20 In particular, Propst argued that a latent defect21 existed in the hangar since, according to Propst, there was evidence that the hangar had been inadequately attached to its foundation, which created an unreasonable risk of harm.22

8. Brief for Appellee at v, 2, Propst v. McNeill, 932 S.W.2d 766 (Ark. 1996) (No. CA-95-1290). 9. Brief for Appellee at 2, Propst (No. CA-95-1290). 10. Brief for Appellant at v, Propst (No. CA-95-1290). 11. For clarity, the Supreme Court referred to all three defendants as the Commission. Propst, 932 S.W.2d at 767. 12. Id. 13. Brief for Appellee at 3, Propst (No. CA-95-1290). 14. Propst, 932 S.W.2d at 767. 15. Brief for Appellant at 2, Propst (No. CA-95-1290). 16. Id. at 3. 17. See infra notes 40-46 and accompanying text (discussing the rationale behind the old common law doctrine). 18. Propst, 932 S.W.2d at 767. 19. Id. 20. Id. at 768. See infra notes 49-54 and accompanying text. See also RESTATEMENT (SECOND) OF TORTS 358-362 (1965); RESTATEMENT (SECOND) OF PROPERTY 17.1-17.7 (1977); PAGE, supra note 4, 9.1-9.38; Brief for Appellant at 5, Propst (No. CA-95-1290). 21. This would fall under the first exception to the traditional common law doctrine, that the state of the hangar=s foundation at the time of the execution of the lease amounted to a Ahidden danger,@ and the Commission was liable to Propst as a result of the damage caused by the defect. 22. Brief for Appellant at 6, Propst (No. CA-95-1290).

1998] ARKANSAS LANDLORD-TENANT LAW 103

Finally, Propst argued that according to the terms of the lease, the Commission retained the right to enter the hangar to make repairs, and barred Propst from making repairs on his own without prior approval by the Commission.23 Therefore, the terms of the lease made the Commission responsible for damages resulting from the hangar=s disrepair.24

In response, the Commission reminded the court that the caveat lessee doctrine has remained the law in Arkansas unchanged for a century and is therefore worthy of respect. Consequently, if this law is to be changed, the Commission argued, the change should be done by the Arkansas General Assembly, not by the courts.25 In support of this argument, the Commission contended that a number of jurisdictions which have abandoned the traditional doctrine have only done so legislatively.26 In addition, according to the Commission, the doctrine itself is an important one since it respects the contracts between tenants and landlords, a constitutionally declared public policy in Arkansas.27 The court should not, then, give a tenant more than he bargained for when leasing the premises. The Commission argued that Propst entered into a lease with the Commission for less than $500 a year to store an expensive aircraft in an old hangar, and justice would not be served by the court imposing a duty on the landlord that neither party could have expected the Commission to have assumed at the time.28 Furthermore, landlords and tenants in Arkansas have been relying on the law as it is, and any changes made by the court would unsettle expectations between property owners and renters, thereby creating a difficult situation for everyone involved.29

In addition, the Commission denied Propst=s contention that caveat lessee is unfairly disadvantageous to uninformed tenants who are left with no options and have little ability to detect defects and adequately evaluate the worthiness of the rental property. The Commission pointed out that Propst is a successful businessman, successful enough to own an airplane and fully capable of appreciating the risks of storing his plane in an old hangar.30 According to the Commission, caveat lessee is only relevant to Aless-than-perfect@ structures, and to impose tort liabilty on landlords would eliminate the productive and beneficial use of marginal structures, making landlords the insurers of their tenants. Consequently, imposing liability on landlords would reduce the options of those seeking rental property.31

Finally, the Commission argued that caveat lessee reflects Arkansas=s adherence to the common law Atri-partite@ scheme of varying duties owed by a landlord to those who occupy or

23. This would fall under the third exception to the traditional common law doctrine, amounting to retention of control of the premises by the Commission, thereby making the Commission liable to Propst for any damages resulting from the Commission=s failure to adequately repair the hangar. 24. Brief for Appellant at 7, Propst (No. CA-95-1290); Propst, 932 S.W.2d at 769. 25. Brief for Appellee at 14, Propst (No. CA-95-1290); Propst, 932 S.W.2d at 767. 26. Propst, 932 S.W.2d at 768. 27. ARK. CONST. art. II, 17 (ANo . . . law impairing the obligation of contracts shall ever be passed . . ..@). Article II, section 17 of the Arkansas Constitution is patterned after Article I, section 10 of the United States Constitution. Mahurin v. Oaklawn Jockey Club, 771 S.W.2d 19 (Ark. 1989). The Constitution generally prohibits the enactment of laws that are retroactive and impair the obligation of contracts or vested rights that arise from those contracts. Talkington v. Turnbow, 83 S.W.2d 71, 73 (Ark. 1935). However, the Constitution does not prohibit states from passing any retrospective law. Leah v. Smith, 25 Ark. 246 (1867). Notwithstanding the Contract Clause, the state has the authority under its police powers to Aestablish all regulations that are reasonably necessary to secure the health, safety, good order, comfort, or general welfare of the community; . . . all property and contract rights are subject to its fair exercise.@ Camden v. Arkansas Light & Power Co., 224 S.W. 444, 445 (Ark. 1920). See also Arkansas Dept of Human Servs. v. Walters, 866 S.W.2d 823, 826 (Ark. 1993) (holding that a court can apply a statute retroactively if it supports public policy); Hand v. H & R Block, Inc., 528 S.W.2d 916, 921 (Ark. 1975) (holding that a state can use its police powers to protect public interest). 28. Brief for Appellee at 18-19, Propst (No. CA-95-1290). 29. Id. at 14. 30. Id. at 18. 31. Id. at 19.


enter the property.32 According to the Commission, even if caveat lessee is a common law hold-over from Feudal England, Arkansas is still a predominantly rural and agricultural state. Therefore, in some aspects, Arkansas is much more similar to agrarian England than one might suppose.33 Caveat lessee, then, is still well suited to Arkansas.

The Supreme Court of Arkansas refused to accept Propst=s argument and overturn a century of precedent.34 However, not only did the court decline Propst=s invitation to abrogate caveat lessee, the court also refused to accept that Arkansas has ever recognized in the past, or should now recognize, the Alatent defect@ and Aretention of control@ exceptions to the common law doctrine.35 Furthermore, in light of the Apolicy considerations and possible impact that would ensue in enlarging a landlord=s liability,@ the court believed that changes to landlord liability might be better handled by the legislature.36 Nevertheless, in dicta, the court opened the door to the possibility that under different circumstances the court might indeed part with the well-established law and impose some kind of tort liability on landlords.37

With the court=s decision in Propst, the law of landlord liability in Arkansas remains unchanged, and, absent some express undertaking by the landlord, landlords have no duty to repair or maintain leased property and therefore cannot be held liable in tort for any injuries or damages resulting from a defect in the premises. In addition, the court made clear that Arkansas has never recognized the Alatent defect@ and Aretention of control@ exceptions to the common law doctrine of caveat lessee.38

III. HISTORICAL DEVELOPMENT

For most areas of the country, the law controlling the landlord-tenant relationship has evolved a great deal since the early common law doctrines were adopted in the United States centuries ago.39 Though the common law is still an active force in the American legal tradition, most Americans have witnessed a substantial erosion of the fundamental common law doctrines of landlord-tenant law.

A. Common Law

As the court in Propst pointed out, caveat lessee is a doctrine imported from Feudal England to the United States. The doctrine requires tenants to take the premises as they find them and

32. Id. at 20. This is a reference to Arkansas=s adherence to the common law doctrine that imposes on landlords different duties depending on whether the person injured on the land is a trespasser, invitee, or licensee. See Young v. Paxton, 873 S.W.2d 546 (Ark. 1994) (discussing the difference in the duty owed by a landlord to invitees and licensees); Coleman v. United Fence Co., 668 S.W.2d 536 (Ark. 1984) (discussing the duty owed by a landowner to trespassers). 33. Brief for Appellee at 20, Propst (No. CA-95-1290). 34. Propst, 932 S.W.2d at 768. 35. Id. at 768-69. 36. Id. 37. The court stated, AAlthough this court does not foreclose its possible review of the caveat lessee rule and the efficacy in abandoning that rule in the future, we conclude that this is not the type of situation or facts that warrant our departure from the well-established law of this state.@ Id. Neither party, nor the court, acknowledged the distinction between commercial and residential leases. However, the pace of change in landlord-tenant law has been much quicker in the residential realm than in the commercial realm. Paula C. Murray, The Evolution of Implied Warranties in Commercial Real Estate Leases, 28 U. RICH. L. REV. 145, 146 (1994); DUKEMINIER & KRIER, supra note 4. The court did, however, seem to make much of the fact that Propst appeared to be a relatively sophisticated businessman who should have known that he was not getting much for his $480 a year. Propst, 932 S.W.2d at 768. It remains to be seen, then, whether the outcome would be different if a residential tenant were severely injured as a result of some defect in the premises. 38. See infra notes 185-89 and accompanying text (discussing the Arkansas Rule of Decision and the court=s contention that the Alatent defect@ and Aretention of control@ exceptions to the common law rule do not apply in Arkansas). 39. See infra note 121.


imposes an obligation on tenants to diligently inspect the premises and discover any potential defects.40 In sixteenth-century England, when a tenant rented land from a landlord, normally the land was intended to be used for agricultural purposes, and any buildings that may have been built on the property were incidental.41 Consequently, the transaction between the landlord and the tenant focused on what amounted to a conveyance of the land as a whole to the tenant for the lease period.42 In sum, the landlord gave the land to the tenant for a period of time,43 and in exchange the tenant promised to pay rent to the landlord.44

As a result, after the tenant took possession of the land, absent any express agreements to the contrary, the landlord had no further duties or obligations to the tenant. Of course, during this agrarian period, such a relationship probably worked well.45 Tenants at that time (the so-called Ajack-of-all-trades@ tenants) were more capable of inspecting and repairing the premises than tenants are today,46 and, after all, the buildings were incidental to the transaction anyway.

However, as times changed and rural populations began shifting to urban centers, courts began to recognize the need to provide more safeguards for tenants.47 As a result, a number of exceptions were carved from the traditional rule that a landlord had no duty to his tenant beyond delivering over possession of the land to him.48 Courts have recognized that: 1) a landlord has a duty to repair latent defects present at the time of execution of the lease agreement;49 2) the landlord has a duty to repair dangerous conditions existing in an area open for public use;50 3) the landlord can be held liable in tort for failing to properly repair a dangerous condition after he has covenanted or volunteered to do so;51 4) the landlord has a duty to repair areas and

40. PAGE, supra note 4, 9.1. 41. Barbara Jo Smith, Tenants in Search of Parity with Consumers: Creating a Reasonable Expectations Warranty, 72 WASH. U. L.Q. 475, 479 (1994). 42. PAGE, supra note 4. In his discussion of the development of the common law doctrine, Page cites a passage from Raymond Harrison Harkrider, Tort Liability of a Landlord, 26 MICH. L. REV. 260, 261 (1928), that states, AThe landowner was a man of great wealth and consequent power [where as] the tenant was commonly a menial servant [and since] [t]he common law judges largely represented the landowning class . . . [i]t is only natural to find that these intangible affiliations and prejudices were reflected in the law.@ Whether Harkrider is correct in this regard is not as important as the fact that many present-day courts have taken stock of the notion that there generally is a disparity in negotiating power between residential landlords and tenants, and, as a result, the law should be changed in order to protect otherwise vulnerable tenants. 43. The common law recognized three principal tenancies: tenancy at will, periodic tenancy, and term of years. See generally DUKEMINIER & KRIER, supra note 4. 44. Indeed, at common law, any covenants to repair contained in the lease were considered independent of the tenant=s obligation to pay rent, thereby forcing the tenant to continue rental payments, make repairs on his own and sue for damages, or sue the landlord for breach of contract. Neither option was satisfactory for tenants who could not afford to make expensive repairs. Smith, supra note 41, at 478. 45. ROBERT S. SCHOSHINSKI, AMERICAN LAW OF LANDLORD AND TENANT 3:10 (1980). 46. Emily M. Haliday, California=s Approach to Landlord Liability for Tenant Injuries: Strict Liability Reexamined, 26 U.C. DAVIS L. REV. 367, 377 (1993). 47. ROGER A. CUNNINGHAM ET AL., THE LAW OF PROPERTY 303 (1984). 48. PAGE, supra note 4, at 9.2. 49. In order for this exception to apply, at the time of the execution of the lease, a dangerous condition or defect must exist that is known to the landlord but unknown and reasonably undiscoverable by the tenant. The landlord=s liability is created by non-disclosure and requires that the landlord have reason to believe that the lessee will not discover the condition. However, once the tenant becomes aware of the danger, or if the defect is open and obvious, the landlord is absolved of liability for damages caused by the defect thereafter. See, e.g., Dorswitt v. Wilson, 125 P.2d 627 (Cal. Ct. App. 1942) (holding that the concealment of a dangerous condition, and not the dangerous condition itself, makes the landlord liable). 50. When the landlord at the time of the lease knows, or reasonably should have known, that the leased premises would be used for a purpose involving the admittance of the public, and the landlord is aware of a dangerous condition that could injure members of the public, and that the premises will be opened to the public before the hazard is repaired, the landlord will have a duty to repair the defect, or at least warn of the defect. See, e.g., Reichener v. Seward, 277 N.W.2d 539 (Neb. 1979). 51. At common law, when the landlord agreed (either expressly in the lease, implied by the lease, or from the surrounding circumstances) to make repairs and then failed to adequately do so, courts would only hold the landlord liable for a breach of contract, and not for a tort. Many courts were reluctant to allow a tenant to recover for personal injuries. However, in light of the fact that tenants


instrumentalities remaining under the landlord=s control;52 5) a landlord may have a duty to keep in good repair furnished premises involved in short-term leases;53 and 6) caveat lessee may not apply to leases entered into before the premises have been completely constructed.54

The common law landlord-tenant doctrine was based upon the notion that the leased land was really conveyed to the tenant for the lease period, and, with a few exceptions, the landlord had no responsibility for the land or its buildings. However, the typical modern landlord-tenant relationship is much different. Few renters in Arkansas today would understand their relationship with their landlord in these terms, but instead would expect, at least in the residential context, that the landlord would have much more responsibility than merely collecting rent and transferring the land to the tenant.

B. Covenant of Quiet Enjoyment and Constructive Eviction

Somewhere between the common law doctrines and the modern approaches to the landlord-tenant relationship lies the covenant of quiet enjoyment and the accompanying doctrine of constructive eviction. Born from the premise that the leasehold is a possessory estate, the tenant derives from the covenant of quiet enjoyment certain protections from the actions of the landlord that could effectively prevent the tenant from possessing the property. Though these doctrines do not provide full protections for all tenants, they do constitute a bridge between the ways of the past and the approaches of the future, as well as provide an intellectual springboard to new developments.

When a tenant leases property, he has a right to exclusive control and possession of the property.55 The law is well established that every lease contains a covenant of quiet enjoyment of the premises that cannot be disturbed by the landlord.56 As a result, subject to the terms of the lease, the landlord covenants that he will not trespass on the tenant=s land or substantially interfere with the tenant=s possession.57 This warranty of quiet enjoyment can be breached by either actual eviction or constructive eviction, and the eviction can be either total or partial.58 When a landlord has wrongfully evicted his tenant from the property, thereby forcing the tenant entirely off the land, the tenant has the right to withhold rent and terminate the lease.59 Similarly, in the case of a partial actual eviction where the landlord only denies the tenant use of part of the premises, the

are likely to rely on the landlord=s promise to repair, and, therefore, forgo efforts to make repairs on their own, a majority of jurisdictions have recognized that a tort duty does exist when injuries result from dangerous conditions existing at the time of the lease and those developing thereafter. See, e.g., Richesnor v. Springco, Inc., 933 S.W.2d 507 (Mo. Ct. App. 1996). 52. Portions of the premises used in common by all tenants of a multi-unit structure (such as passageways, stairways, porches, parking lots, lobbies, and yards) or instrumentalities to be used in common by the tenants (such as bathroom, plumbing, and laundry facilities) are not likely to be repaired by the tenants. This creates a risk of danger to all tenants. In jurisdictions where this exception applies, a landlord has a duty to keep such common areas and instrumentalities reasonably safe when he knows or should know of a defect. Some courts also impose an obligation on the landlord to inspect the common areas and instrumentalities. See, e.g., Lay v. Dworman, 732 P.2d 455 (Okla. 1986). 53. This exception was created in light of the fact that a tenant who is leasing for only a short-term is unlikely to make repairs, and, in any event, it would be much more difficult for a tenant to discover defects when the premises are furnished. Anthony J. Vlatas, An Economic Analysis of Implied Warranties of Fitness in Commercial Leases, 94 COLUM. L. REV. 658, 662 (1994). 54. Obviously it would be extremely difficult for a lessee to adequately inspect the premises before construction has been completed. See, e.g., Oliver v. Hartzell, 280 S.W. 979 (Ark. 1926); Smith, supra note 41, at 480. 55. CRIBBETT & JOHNSON, supra note 4, at 244. 56. Id. See, e.g., Trace X Chem., Inc. v. Highland Resources, Inc., 579 S.W.2d 89, 93 (Ark. 1979) (Fogelman, J. dissenting) (holding that every lease in Arkansas Acontains an implied covenant of quiet enjoyment@); Pickett v. Ferguson, 45 Ark. 177 (1885) (holding that the covenant of quiet enjoyment is implied in every lease). See also Reste Realty Corp. v. Cooper, 251 A.2d 268, 274 (N.J. 1969). 57. CRIBBETT & JOHNSON, supra note 4, at 244. 58. Id. 59. CUNNINGHAM ET AL., supra note 47, at 294.


general rule is that the tenant can remain in possession of the land and suspend payment of the entire rental as long as the interference continues.60

The tenant=s right to quiet enjoyment of the premises can be breached by the landlord in an indirect manner as well. If a tenant is forced to vacate the premises because the landlord has substantially interfered with the tenant=s use and enjoyment of the premises, the landlord has constructively evicted the tenant from the property.61 A substantial interference with the tenant=s quiet enjoyment would have to be grave enough to make the premises Auntenantable@ (i.e. uninhabitable)62 and would have to be the result of a wrongful act or omission by the landlord.63 Such practices as removing all of the doors and windows during winter,64 or failing to provide heat when promised65 have been held to constitute constructive eviction by the landlord, provided the tenant was forced to abandon the premises as a result of the interference.66

The doctrine of constructive eviction, however, does not provide adequate protection for tenants who live in premises in need of repairs that are either undetectable (such as faulty wiring), or on their face do not amount to constructive eviction (such as a staircase in disrepair), even if the defect in question could potentially harm or seriously injure the tenant. More importantly, however, abandoning the premises is a prerequisite to recovering under a constructive eviction theory. This means that not only does abandoning force the tenant to find another place to live (which can be both inconvenient and expensive), but also that only detected defects are covered, not the kind of latent dangerous conditions that could likely result in injury or damage.

C. Implied Warranty of Habitability

To help fill in this gap, courts and legislatures have responded to the pressures of cultural and economic change that have worked to make the caveat lessee doctrine outmoded and archaic, and have moved in the direction of reform.67 Over time, courts in other jurisdictions began to view leases less as conveyances of the land and more as contracts between two parties.68 In addition, the proliferation of state and local housing regulations and codes designed to impose minimum standards of habitability, recognition of the tenant=s increased expectation that leased property will be suitably habitable, and the modern belief that tenants lack the ability to fully inspect or maintain the premises have convinced courts that today=s tenants need greater protections.69 As a result, similar to the way the Uniform Commercial Code obligates sellers to warrant the merchantability of consumer products,70 courts began to imply into leases a warranty of habitability that would begin at the inception of the lease and continue until it ended.71

60. Id. at 296; CRIBBETT & JOHNSON, supra note 4, at 244-45. 61. Smith, supra note 41, at 481. 62. CUNNINGHAM ET AL., supra note 47, at 297. 63. Id. 64. Id. at 296 (calling this a Aclassic hypothetical example@). 65. See Automobile Supply Co. v. Scene-in-Action Corp., 172 N.E.2d 35 (Ill. 1930); Charles E. Burt, Inc. v. Seven Grand Corp., 163 N.E.2d 4 (Mass. 1959); Shindler v. Grove Hall Kosher Delicatessen & Lunch, Inc., 184 N.E.2d 673 (Mass. 1933). 66. Murray, supra note 37, at 150. 67. DUKEMINIER & KRIER, supra note 4. 68. Joan L. Neisser, The Tenant as Consumer: Applying Strict Liability Principles to Landlords, 64 ST. JOHN=S L. REV. 527, 531 (1990). 69. Detling v. Edelbrock, 671 S.W.2d 265, 269 (Mo. 1984). 70. Unless excluded or modified, a warranty that the goods shall be merchantable is implied in a contract for their sale.@ U.C.C. 2-314 (1991). See James H. Backman, The Tenant as a Consumer? A Comparison of Developments in Consumer Law and in Landlord/Tenant Law, 33 OKLA. L. REV. 1 (1980). See also Vlatas, supra note 53, at 664-69 and notes within. 71. Neisser, supra note 68, at 531.


In jurisdictions that recognize the doctrine, the landlord is required to warrant that the leased premises will be safe and habitable for the duration of the lease.72 Habitability is often Ameasured by community standards, reflected in most cases in local housing and property maintenance codes.@73 AThe warranty of habitability, [then], requires that a landlord establish and maintain a residential property in a reasonably safe and healthy condition based on community standards during the term of a lease.@74 Therefore, in order for a tenant to recover damages from his landlord, the defect must arise after the tenant enters into the lease, the tenant must provide the landlord with reasonable notice, and the landlord must subsequently fail to restore the premises to habitability.75

The courts that do recognize the warranty have taken a number of different approaches in determining what constitutes a defect and when a breach has occurred. Some courts find a per se breach when a material housing code violation has occurred.76 Other courts have devised a checklist of circumstances the court must consider.77 A third approach is to consider whether tort liability would be imposed in the event the potential harm actually occurred.78

The damages available to the tenant can arise either in contract or in tort. A lease agreement creates a contractual relationship between the landlord and tenant, containing mutual rights and obligations, including the landlord=s implied warranty of habitability to the tenant. Any breach of that warranty would give rise to traditional contract damages.79 Some courts also recognize, however, that the implied warranty creates a duty for the landlord to maintain the premises, and any breach of that duty can give rise to recovery for the tenant if he has suffered physical injury caused by the landlord=s negligence in failing to repair.80 Other courts have recognized that a knowing or reckless breach by the landlord can allow the tenant to recover tort damages.81 Furthermore, breach of a contract duty can give rise to a tort claim. Though breach of a contract duty, in itself, is not enough to constitute a tort, A[i]f a duty has its roots in contract, then the undertaking to observe due care may be implied from the contractual relationship. A breach of that duty may also constitute a tort.@82

The contract remedies available to tenants under a breach of the implied warranty of habitability, however, pose a potential problem for the courts.83 There are several remedies at a court=s disposal, but none of them seem to offer a perfect solution. For instance, the tenant could be allowed to reform the lease to more properly reflect the actual rental value of the property in light of its reduced habitability.84 However, if the property is so defective that a violation has occurred, little good would come from allowing a tenant to pay reduced rent for premises that are not habitable. Second, a tenant could be allowed to rescind the lease, but in doing so, the tenant

72. Haliday, supra note 46, at 380. 73. Detling, 671 S.W.2d at 270. 74. Proffer v. Randall, 755 S.W.2d 655, 656 (Mo. Ct. App. 1988). 75. Loven v. Davis, 783 S.W.2d 152, 155 (Mo. Ct. App. 1990). 76. David C. Richards, The Utah Fit Premises Act and the Implied Warranty of Habitability: A Study in Contrast, 1991 UTAH L. REV. 55, 85 (1991). 77. Id. (citing Mease v. Fox, 200 N.W.2d 791 (Iowa 1972)). In Mease, the court listed the following factors for consideration: the nature of the deficiency or defect; its effect on safety and sanitation; the length of time for which it persisted; the age of the structure; the amount of the rent; whether the tenant voluntarily waived the defects or is estopped to raise the question of the breach; and whether the defects resulted from unusual use by the tenant. Mease, 200 N.W.2d at 797. 78. Richards, supra note 76, at 86. 79. Love v. Monarch Apartments, 771 P.2d 79, 83 (Kan. Ct. App. 1989); Detling, 671 S.W.2d at 270. 80. Allen v. Lee, 538 N.E.2d 1073, 1075 (Ohio Ct. App. 1987). 81. Montanez v. Bagg, 510 N.E.2d 298, 300 (Mass. App. Ct. 1987). 82. Insurance Co. of N. Am. v. Villagrana, 800 P.2d 585, 587-88 (Ariz. 1990) (citations omitted). 83. See generally Debra T. Landis, Measure of Damages for Landlord=s Breach of Implied Warranty of Habitability, 1 A.L.R. 4TH 1182 (1981). 84. Richards, supra note 76, at 87.


would be forced to vacate the premises, obligating the tenant to spend time and money searching for a new home.85 A third option would be to allow the tenant to recover damages from the landlord. However, the difficulty with this option is in determining the amount of the damages owed. Some courts subtract the fair market price of the property in its defective condition from the contract price (i.e., reasonable rental value).86 In some jurisdictions, the courts will award the tenant damages equivalent to the decrease in rental value caused by the landlord=s breach of the warranty of habitability.87 Other courts subtract the fair market value of the property in its defective condition from the value of the property as it was warranted by the landlord.88 A third approach is to measure damages by the percentage of use of the property lost due to the defect.89

However, the market value of the property is likely to take into consideration the defects of the property at the time the lease is entered into. Quite often there will be little or no difference between the contract price and the fair market value,90 or the price as warranted and the fair market value. Consequently, even though a lessee may have a good claim against his landlord for breach of the implied warranty of habitability, absent an effective means of calculating meaningful damages, the tenant will not sufficiently benefit in the end.

Thus, the landlord-tenant relationship poses a number of significant problems for courts, not only in establishing a usable framework for determining the nature of a breach of the lease, but also in fashioning an adequate remedy. However, many modern courts--while remaining sensitive to the workings of the marketplace and the rights of landowners to freely contract--are placing more responsibility on the shoulders of landlords to provide adequate rental properties (in particular, good housing for residential tenants).

D. Implied Warranty of Habitability in Arkansas

Arkansas has long recognized the implied warranty of habitability, but only as far as the warranty applies to the sale of new property. In Wawak v. Stewart,91 the Arkansas Supreme Court recognized for the first time an implied warranty of fitness between the original builder-vendor92 and the original vendee in the sale of a new dwelling.93 The builder-vendor warrants that Athe house is constructed in a workmanlike manner and is fit for human habitation.@94 This warranty will extend Ato all integral parts and systems of the house.@95

The rationale in Wawak supporting the court=s decision to deviate from the traditional rule of caveat emptor in Arkansas was based, at least in part, on the court=s recognition that times had changed and many other jurisdictions had chosen to walk the path of reform. The court cited several recent law review articles, Professor Willistons treatise on contracts, and a number of recent state supreme court cases and concluded that:

85. Id. at 88. 86. See Quevedo v. Braga, 140 Cal. Rptr. 143 (1977); Kline v. Burns, 276 A.2d 248 (N.H. 1971); Berzito v. Gambino, 308 A.2d 17 (N.J. 1973); Beasley v. Freedman, 389 A.2d 1087 (Pa. 1978); Pugh v. Holmes, 384 A.2d 1234 (Pa. 1978). 87. Park West Management Corp. v. Mitchell, 391 N.E.2d 1288 (N.Y. 1978). 88. See, e.g., Mease v. Fox, 200 N.W.2d 791 (Iowa 1972); Darmetko v. Boston Hous. Auth., 393 N.E.2d 395 (Mass. 1979); Boston Hous. Auth. v. Hemingway, 293 N.E.2d 831 (Mass. 1973). 89. Richards, supra note 76, at 89. 90. See generally Kekllas v. Saddy, 389 N.Y.S.2d 756 (1976) (awarding nominal damages only). 91. 449 S.W.2d 922 (Ark. 1970). 92. In order to incur liability under the implied warranty of habitability, the builder of the house must also be its initial seller. See Carolina Winds Owner=s Assoc., Inc. v. Joe Harden Builder, Inc., 374 S.E.2d 897, 900 (S.C. Ct. App. 1988) (holding that the determining factor for liability is not that the defendant builds the house, but that, by its initial sale, he places it into the stream of commerce). 93. Id. 94. Pickler v. Fisher, 644 S.W.2d 644, 644 (Ark. Ct. App. 1983). 95. Id. at 644-45.


The law should be based on current concepts of what is right and just and the judiciary should be alert to the neverending need for keeping its common law principles abreast of the times. Ancient distinctions which make no sense in today=s society and tend to discredit the law should be readily rejected.96 The Arkansas Supreme Court also recognized the practical inequities of imposing upon the

purchaser of a modern home the duty to discover structural defects when the builder-vendor is in by far the better position to know of potential defects and prevent harm from occurring.97

Thereafter, the court extended the warranty to a sale involving a subsequent purchaser not in privity with the original builder.98 The court had little difficulty applying the concepts established for original homebuyers in Wawak to provide protections for subsequent purchasers. After all, Athe purpose of [the] warranty is to protect innocent purchasers and hold builders accountable for their work,@ and no matter who owns the house, A[t]he builder always has available the defense that the defects are not attributable to him.@99 In this context the warranty is Alimited to latent defects which are not discoverable by subsequent purchasers upon reasonable inspection and which become manifest only after the purchase.@100 Purchasers still have an obligation to make a reasonable inspection of the premises and any open and obvious defects will not fall under the implied warranty.

The warranty, however, does not last forever and will not extend in all cases to all purchasers. AObviously, there is a point in time beyond which the implied warranty will expire and that time should be based on a standard of reasonableness.@101 The reasonable standard will depend upon the useful life of the defective component at issue, which in some instances might be as long as thirty to fifty years.102

The courts that have extended the builder-vendor=s implied warranty of habitability to subsequent purchasers of the new home have readily accepted that the warranty exists in the structure of the home and is not restricted to those who are in privity of contract with the builder-vendor.103 The implied warranty is a creature of public policy, imposed on the parties as a matter of law to protect the innocent homeowner.104 In Arkansas, however, a homeowner, whether he be the first, second, third, or tenth purchaser, has more legal guarantees of the safety and habitability of his home than does the renter of a home. If the roof of the tenant=s home were defective, making the home uninhabitable, the landlord would not be obligated to make repairs or compensate the tenant for any of his damages, even if the roof were only a month or two old. Under Arkansas landlord-tenant law, the tenant takes the premises as they are, and, absent an agreement to the contrary, the landlord would have no duty to repair the roof. However, if the tenant were a purchaser of the home, assuming the warranty had not expired, he would have a cause of action against the builder to have the roof repaired or replaced, even if he purchased the home years after its initial construction. Consequently, a tenant who rents a house that is two

96. Wawak, 449 S.W.2d at 923-24 (quoting Schipper v. Levitt & Sons, 207 A.2d 314 (N.J. 1965)). See infra notes 210-13 and accompanying text. 97. Id. at 924. 98. Blagg v. Fred Hunt & Co., 612 S.W.2d 321 (Ark. 1981). 99. Sewell v. Gregory, 371 S.E.2d 82, 86 (W. Va. 1988). 100. Blagg, 612 S.W.2d at 322. 101. Id. 102. Hershey v. Rich Rosen Constr. Co., 817 P.2d 55, 58 (Ariz. Ct. App. 1991) (holding that, whereas five years may be reasonable for a septic tank or termite protection, exterior stucco in the Arizona desert has a normal expected life of thirty to fifty years and, therefore, the extension of a warranty on the stucco for twelve years is not unreasonable). 103. Lempke v. Dagenais, 547 A.2d 290, 294 (N.H. 1988). 104. Id. at 293.


months old would have no guarantees of the home=s habitability, but a purchaser of a home that is twenty years old could still be entitled to recover from the original builder.

If the builder-vendor=s implied warranty exists in the structure and, at least in part, is designed to hold builders accountable for their work, and if privity of contract is not required in Arkansas, there is no logical reason to deny a tenant a right of recovery against the builder for any shoddiness in the construction of his home. In Tusch Enters. v. Coffin,105 the owner of a rental property sued the builder-vendor for breach of the implied warranty of habitability when the foundation of the buildings proved to be defective.106 The defendant argued that the owner of the homes was renting them out and did not actually occupy them, and, therefore, any warranties that may have existed did not extend to them.107 The Idaho Supreme Court drew no distinction between homeowners who personally reside in the dwelling and those who lease them and held the builder liable to the purchaser for breach of the implied warranty of habitability.108 The court focused on the structure, not its occupants, and concluded, A[i]t is of no matter who ultimately inhabits the home after purchase, be it the buyer, a relative or lessee. The implied warranty is that the structure will be fit for habitation.@109 Therefore, if the quality of the dwelling and the expectations of the parties are what is ultimately at issue, and not who happens to be occupying the house at the time the latent defect becomes manifest,110 there should be no distinction between a purchaser and a lessee when applying the builder-vendor=s implied warranty of habitability. After all, the Afocus is upon the product,@111 and the builder-vendor should be obligated to pay a tenant damages that result from latent defects in the home as long as the warranty period lasts.

Furthermore, if the original builder-vendor in Arkansas must warrant the quality of its workmanship and the safety and habitability of the building it constructs for the reasonable useful life of the structure=s component parts, regardless of who the occupant is, a landlord should be required to make similar guarantees to its tenants. Tenants are no less innocent and no more capable of fully inspecting the premises they eventually rent. Though landlords often do not build the structures they lease, they are in a much better position than the tenant to discover and know of potentially dangerous defects in the property. Furthermore, under the implied warranty of habitability, a landlord is only required to ensure that the building is safe and habitable based on a reasonable community standard. In addition, the landlord will always have a right of recovery against the builder-vendor for latent defects still covered by the builder=s warranty. This places the cost of repairs on the true wrongdoer and not on the innocent tenant.

Moreover, just as the builder-vendor=s liability arises when he places the property in the stream of commerce,112 the landlord, too, places his building in the stream of commerce by renting it to others. The landlord is in the better position to know of the soundness of the structure he is leasing. As a result, landlords in Arkansas should be obligated to assume the duty of warranting the habitability of the property they rent to their tenants to ensure that all renters have a safe and decent place to live.

105. 740 P.2d 1022 (Idaho 1987). 106. Id. at 1025. 107. Id. at 1031. 108. Id. 109. Id. (emphasis added). 110. Tusch Enters. v. Coffin, 740 P.2d 1022, 1031 (Idaho 1987). 111. Id. 112. See supra note 92.


E. Implied Warranty of Habitability in Commercial Leases

The lease in Propst was a commercial lease because it involved a storage hangar and not a house or an apartment. This distinction is significant because even though the covenant of quiet enjoyment and the doctrine of constructive eviction undoubtedly apply in the commercial context,113 the implied warranty of habitability does not apply to commercial leases in all jurisdictions.

Recognition of the disparity in relative bargaining power between landlord and tenant114 in the residential setting has prompted landlord-tenant reform, resulting in more protection for residential tenants. Courts, however, have been far more reluctant to extend the same kind of protections to commercial tenants115 because commercial tenants appear to be in an equal bargaining position with their landlords.

However, not all commercial tenants are equally sophisticated or equally capable of evaluating the soundness of the property as their landlords. Modern buildings, whether residential or commercial, are complicated structures with complex heating, plumbing, and electrical systems, and not all commercial tenants have specialized knowledge of these systems. Regardless of a tenant=s expertise, however, the landlord, not the tenant, should be obligated to accept the responsibility for detecting defects. The landlord, after all, is more likely to have firsthand knowledge of the nature and soundness of the structure.116

In addition, most commercial tenants do not inspect the leased property for its structural soundness, but rather for space requirements, adequate location, parking, and other conditions related to conducting a profitable business.117 Since the overwhelming majority of businesses in America are small companies and corporations, the courts cannot realistically expect many commercial tenants to be capable of inspecting the property for dangerous defects or have the bargaining power to force a landlord to warrant the property=s fitness.118

Propst contended that the damage to his airplane was caused by the Commission negligently failing to secure the hangar to its foundation and failing to replace defective structural supports.119 The court was unsympathetic to Propst=s position, perhaps in part because Propst is a successful businessman who is prosperous enough to own an airplane, and who is therefore presumably capable of appreciating the risks of using an old hangar.120

Propst may be a sophisticated businessman, but how many businessmen, sophisticated or otherwise, are capable of easily recognizing serious structural defects in airplane hangars? Moreover, why should the onus be put on the lessee to discover defects or bear the risk of loss? Certainly every consumer should be obligated to act in a responsible manner, but allowing landlords to rent out Amarginal structures@ to unwitting consumers without any risk of liability works against the goal of reducing risk of injury in society. Landlords have no incentive to repair and maintain their properties and can continue to rent defective hangars to Asophisticated businessmen,@ and, when damage occurs, blame their customers for not having enough sense to store their expensive aircraft elsewhere.

113. See Reste Realty Corp. v. Cooper, 251 A.2d 268 (N.J. 1969). 114. See, e.g., E.P. Hinkel & Co. v. Manhattan Co., 506 F.2d 201 (D.C. Cir. 1974); Service Oil Co. v. White, 542 P.2d 652, 659 (Kan. 1975). 115. Todd D. Ruggiero, Brown v. Green and Hadian v. Schwartz: Determining Who is Responsible for Major Structural Repairs in Commercial Leases, 28 PAC. L. J. 417, 423 (1997). 116. Donald R. Pinto, Modernizing Commercial Lease Law: The Case for an Implied Warranty of Fitness, 19 SUFFOLK U. L. REV. 929, 950 (1985). 117. Murray, supra note 37, at 172. 118. Id. (citing STATISTICAL ABSTRACT OF THE UNITED STATES 516 (1985)). 119. See supra note 12 and accompanying text. 120. See supra note 30 and accompanying text.


In the marketplace, consumers are said to get what they pay for, and few people would expect to get much mileage out of an automobile selling for $100. But no consumer, Asophisticated businessman@ or otherwise, should be penalized for thinking he made a good deal. After all, should everyone be expected to understand that $480 is the fair market value for a defective hangar? Consumers expect to rely on others to provide safe and reliable products and should not be forced to assume the risk of renting a defective or potentially dangerous piece of property simply because they got a good bargain.

Finally, just as residential tenants are assured decent and habitable living conditions, courts should extend the implied warranty of habitability to commercial leases to ensure a safe and habitable working environment. Courts should be equally willing to compel landlords of commercial property to warrant the quality and safety of the property they rent. Just as residential tenants should be guaranteed a safe and decent place to live, commercial landlords should also be compelled to ensure that employees have a decent environment in which to work. The distinction between residential and commercial leases regarding the implied warranty of habitability is faulty and should be set aside in favor of a more rational approach that would require all landlords, regardless of the nature of the use of the structure, to warrant and ensure the habitability and fitness of the leased premises.

F. Legislative Landlord-Tenant Reform

While courts have struggled with the complexities of the landlord-tenant relationship, legislatures across the country have taken steps to enact reforms on their own. As a result, most American jurisdictions now have some form of legislation providing for tenant protection and imposing a duty on landlords to repair and maintain the leased premises.121 Though the landscape of the legislation remains diverse, the results are generally the same: more protections and remedies for tenants, and more duties for landlords.

In 1924,122 Louisiana enacted a statute obligating the lessor to Amaintain the [premises] in a condition such as to serve for the use for which it is hired@123 and to Adeliver the [premises] in good condition, and free from any repairs.@124 The statute also requires the landlord to make Aall the repairs which may accidentally become necessary.@125 In addition, a landlord in Louisiana is required to guarantee Aagainst all vices and defects of the [premises], which may prevent its being used.@126 Finally, in the event that serious repairs become necessary, a tenant=s entire rent can be remitted.127

Similarly, the Uniform Residential Landlord and Tenant Act of 1972 (AURLTA@), a creation of the National Conference of Commissioners on Uniform State Laws, proposes that states require residential landlords128 to Acomply with the requirements of applicable building and

121. Arkansas is in the considerable minority of states that have not yet addressed this matter legislatively. See infra notes 123-77 and accompanying text (discussing the legislative enactments of the other 44 states). Only Alabama, Arkansas, Colorado, Illinois, Indiana, and Wyoming have not yet codified some form of landlord duty to repair and maintain leased property. Among those states, however, Illinois and Indiana do recognize the implied warranty of habitability. See Vanlandingham v. Ivanow, 615 N.E.2d 1361 (Ill. 1993); Johnson v. Scandia Assoc., Inc., 641 N.E.2d 51 (Ind. 1994). The other states do not recognize the implied warranty of habitability. See Murphy v. Hendrix, 500 So. 2d 8 (Ala. 1986); Bedell v. Los Zapatistas, Inc., 805 P.2d 1198 (Col. 1991); Ortega v. Flair, 902 P.2d 199 (Wyo. 1995). Arkansas is left as one of only four states still clinging to the common law doctrine. 122. Smith, supra note 41, at n.94. 123. LA. CIV. CODE ANN. art. 2692(2) (West 1997). Cf. U.C.C. 2-314 (1991) (AImplied Warranty of Merchantability@). 124. LA. CIV. CODE ANN. art. 2693 (West 1997). 125. LA. CIV. CODE ANN. art. 2693 (West 1997). 126. LA. CIV. CODE ANN. art. 2695 (West 1997). 127. LA. CIV. CODE ANN. art. 2700 (West 1997). 128. Again, this act is designed to benefit only residential tenants and not commercial tenants. See supra notes 113-20 and accompanying text for a discussion of the importance of this distinction.


housing codes materially affecting health and safety@;129 to Amake all repairs@ and Akeep the premises in a fit and habitable condition@;130 to maintain common areas,131 plumbing, and sanitary facilities; to supply required utilities;132 and to provide running water, hot water, and reasonable heat.133

Since 1972, fifteen states have followed the lead of the URLTA and enacted substantially similar legislation. Alaska,134 Arizona,135 Connecticut,136 Iowa,137 Kansas,138 Kentucky,139 Montana,140 Nebraska,141 New Mexico,142 North Carolina,143 North Dakota,144 Ohio,145 Rhode Island,146 South Carolina,147 and Virginia148 have all adopted the major provisions of the URLTA. In addition, Hawaii,149 Mississippi,150 and Tennessee151 have enacted legislation that is similar to the URLTA, with some slight variations. All three states, however, do require that the landlord comply with building and housing codes materially affecting health and safety. Maine,152 Nevada,153 New Jersey,154 New York,155 Oklahoma,156 Oregon,157 Pennsylvania,158 South

129. UNIFORM RESIDENTIAL LANDLORD AND TENANT ACT 1972 2.104(a)(1) (hereinafter AURLTA@). Landlords are always required to comply with all housing codes. However, statutes like this one create a cause of action in tort when injuries result from the landlord=s failure to comply with housing codes Amaterially affecting health and safety.@ 130. URLTA 2.104(a)(2). 131. URLTA 2.104(a)(3). 132. URLTA 2.104(a)(4). 133. URLTA 2.104(a)(6). 134. ALASKA STAT. 34.03.100 (Michie 1997) (requiring that landlords provide smoke detection devices). 135. ARIZ. REV. STAT. ANN. 33-1324 (West 1996). 136. CONN. GEN. STAT. ANN. 47a-7 (West 1997). 137. IOWA CODE ANN. 562A.15 (West 1997). 138. KAN. STAT. ANN. 58-2553 (1996). 139. KY. REV. STAT. ANN. 383.595 (Banks-Baldwin 1997). 140. MONT. CODE ANN. 70-24-303 (1996) (requiring that landlords provide an approved smoke detector). 141. NEB. REV. STAT. 76-1419 (1996). 142. N.M. STAT. ANN. 47-8-20 (Michie 1997). 143. N.C. GEN. STAT. 42-42 (1996) (omitting separate requirements for running water, hot water, and heat under the URLTA, but requiring that landlords provide operable smoke detectors). 144. N.D. CENT. CODE 47-16-13.1 (1997). 145. OHIO REV. CODE ANN. 5321.04 (Banks-Baldwin 1997). 146. R.I. GEN. LAWS 34-18-22 (1996) (requiring that a housing code violation be one that affects health and safety, not a violation that Amaterially@ affects health and safety, as the URLTA requires). 147. S.C. CODE ANN. 27-40-440 (Law Co-op. 1996). 148. VA. CODE ANN. 55-248-13 (Michie 1997). 149. HAW. REV. STAT. ANN. 521-42 (Michie 1996) (requiring running water, but not hot water, and omitting the requirement of reasonable heat). 150. MISS. CODE ANN. 89-8-23 (1996) (having no separate provisions requiring that the landlord provide running water, keep common areas clean and safe, and maintain the premises in a fit and habitable condition, as required by the URLTA). 151. TENN. CODE ANN. 66-28-304 (1997) (having no separate provisions for heat, plumbing, hot water, running water or other utilities). 152. ME. REV. STAT. ANN. tit. 14, 6021 (West 1996) (requiring only that the landlord warrant that the dwelling is fit for human habitation). 153. NEV. REV. STAT. 118A.290 (1995) (requiring that landlords maintain all dwelling units in a habitable condition, such that all have adequate waterproofing and weather protection, plumbing facilities, hot and cold water supplies, sewage disposal systems, adequate heating facilities, and electrical lighting and wiring). 154. N.J. STAT. ANN. 2A:42-88 (West 1997) (providing that a cause of action arises when there exists a lack of heat, running water, light, electricity, adequate sewage facilities, Aor any condition . . . in substantial violation of the standards of fitness for human habitation@ established under local housing or health codes, Aor any other condition dangerous to life, health or safety@). 155. N.Y. REAL PROPERTY LAW 235-b (McKinney 1997) (providing that landlords must warrant that the premises are fit for human habitation, and the occupants will not be subjected to Aany conditions which would be dangerous, hazardous or detrimental to their life, health or safety@). 156. OKLA. STAT. ANN. tit. 41, 118 (West 1997) (requiring that landlords maintain common areas, maintain electrical, heating, plumbing, and sanitary facilities, and Amake all repairs and do whatever is necessary to put and keep the . . . premises in a fit and habitable condition@).


Dakota,159 Vermont,160 Washington,161 and West Virginia162 all require that the landlord maintain the leased premises in a fit and habitable condition, similar to the implied warranty of habitability and the URLTA.

The remaining sixteen states have gone in a number of different directions. Since 1863, Georgia has only required that the landlord Akeep the premises in repair.@163 California goes so far as to require a landlord to provide at least one telephone jack.164 While most statutes rely on building and health codes as a measure of habitability, Florida has provisions that require maintenance of the property by the landlord even in the absence of applicable housing codes.165 Other states like Delaware,166 Maryland,167 Texas,168 and Utah169 not only want to ensure that residential rental units are habitable, but also focus on protecting the health and safety of residential tenants.

Massachusetts170 and Missouri171 provide a remedy for affected third parties and the occupants of a building that has become a nuisance or is a danger to the public, as well as its occupants. Michigan172 and Minnesota173 require the landlord to warrant that the premises are fit

157. OR. REV. STAT. 90.320 (1996) (requiring that landlords maintain all dwelling units in a habitable condition, such that they have adequate waterproofing and weather protection, plumbing facilities, hot and cold water supplies, sewage disposal system, adequate heating facilities, and electrical lighting and wiring, and that the landlord maintain the grounds and common areas such that they are free of trash, rodents and vermin). 158. 35 PA. CONS. STAT. ANN. 1700-1 (West 1997) (providing that the duty of the tenant to pay rent is suspended when the dwelling is certified by the Public Health Department as unfit for human habitation). 159. S.D. CODIFIED LAWS 43-32-8 (Michie 1997) (requiring that landlords maintain electrical, plumbing and heating systems, and Akeep the premises and all common areas in reasonable repair and fit for human habitation@). 160. VT. STAT. ANN. tit. 9, 4457 (1996) (requiring landlord to provide reasonable heat, and hot and cold water, and to warrant that the premises will be maintained in a safe and clean condition fit for human habitation). 161. WASH. REV. CODE ANN. 59.18.060 (West 1996) (requiring landlord to keep the premises fit for human habitation, such that the premises substantially comply with applicable codes and statutes, that floors, roofs, and other structural components are maintained, common areas are kept reasonably clean and safe, rodents and pests are controlled, adequate locks provided, and that electrical, plumbing, and heating facilities are maintained). 162. W.VA. CODE 37-6-30 (1997) (requiring landlord to deliver and maintain the premises in a fit and habitable condition that meets the requirements of applicable health and safety housing codes, and to maintain common areas, as well as electrical, plumbing, sanitary, and heating facilities). 163. GA. CODE ANN. 44-7-13 (1997). 164. CAL. CIV. CODE 1941.4 (West 1997). Section 1941.1 also deems a dwelling untenantable if it lacks effective waterproofing and weather protection, adequate plumbing facilities, hot and cold running water, heating facilities, electricity, and safe and clean common areas. CAL. CIV. CODE 1941.1 (West 1997). 165. FLA. STAT. ANN. 83.51 (West 1997) (requiring landlords to make reasonable provisions for the extermination of rats, mice and other pests, as well as providing adequate locks, keeping common areas safe and clean, maintaining roofs, windows, doors, and all other structural components regardless of the existence of applicable housing codes). 166. DEL. CODE ANN. tit. 25, 5305 (1996) (requiring that landlords provide a rental unit that will not Aendanger the health, welfare, or safety of the tenants@). 167. MD. CODE ANN., REAL PROP. 8-211 (1997) (stating that the purpose is to encourage Athe repair of serious and dangerous defects@ which Apresent a substantial and serious threat of danger to the life, health, and safety of the occupants,@ including fire hazards). 168. TEX. PROP. CODE ANN. 92.056 (West 1997) (providing that a landlord has a duty to repair conditions that Amaterially affect the physical health or safety of an ordinary tenant@). 169. UTAH CODE ANN. 57-22-4 (1997) (requiring a landlord, in order Ato protect the physical health and safety of the ordinary renter,@ to rent premises that are safe and sanitary, maintain common areas, as well as electrical systems, plumbing, heat, hot and cold water, and other facilities). 170. MASS. GEN. LAWS ANN. ch. 111, 127B (West 1997) (providing that upon determination by the board of health that a building or dwelling is unfit for human habitation, has become a nuisance, or may be dangerous to the occupants or to the public, the owners or occupants can be forced to vacate, or put the premises in a habitable condition). 171. MO. ANN. STAT. 441.510 (West 1997) (allowing occupants or affected third parties to maintain a civil action for nuisance). 172. MICH. COMP. LAWS ANN.. 554.139 (West 1997) (providing that, AIn every lease . . . of residential premises, the lessor . . . covenants that the premises and all common areas are fit for the use intended by the parties@). 173. MINN. STAT. ANN. 504.18 (West 1997) (providing that, AIn every lease . . . of residential premises, the lessor . . . covenants that the premises and all common areas are fit for the use intended by the parties@).


for the intended use of the tenant.174 However, Idaho,175 New Hampshire,176 and Wisconsin,177 though providing guidelines for landlords to follow, mention nothing specifically about habitability or warranties of any kind.

These enactments generally have attempted to codify the implied warranty of habitability and ensure that all residential tenants have some measure of safe and adequate housing in which to live. Arkansas, however, has no such provision and merely continues to rely on doctrines laid down centuries ago that no longer have any rational relationship to the world in which Arkansans live. A landlord in Muldrow, Oklahoma, is required to keep his rented property in a fit and habitable condition,178 but a landlord 10 miles away in Fort Smith, Arkansas, is not. A tenant in Seligman, Missouri,179 a few miles from the Arkansas border, would have more protections than any tenant in Arkansas. Furthermore, a landlord in Ida, Louisiana, would be required to deliver the premises in good condition and make all repairs which may become necessary,180 but a landlord six miles away in Doddridge, Arkansas, would have no duty to repair or maintain the premises in any kind of good condition. In addition, landlords in Memphis, Tennessee,181 Greenville, Mississippi,182 and Texarkana, Texas,183 could be held liable to the tenant under state law for failure to keep the rented premises in compliance with building codes materially affecting health and safety, but Arkansas landlords right across the border in West Memphis, Lake Village, or Texarkana, Arkansas, could not.

The landscape in legislative landlord-tenant reform is diverse, and regardless of the many pros and cons that may exist regarding the various approaches taken by the many jurisdictions, there is a veritable cornucopia of possible solutions that the Arkansas General Assembly could consider and adopt. However, this lack of uniformity should not dissuade Arkansas from joining the overwhelming majority of states that have chosen to enact reforms.

Perhaps Arkansas, as the Commission pointed out, is still a predominantly rural and agrarian state,184 but other rural and agrarian states like Iowa, Nebraska, and Montana have all adopted landlord-tenant legislation. Most southern states, such as Tennessee, South Carolina, Georgia, and Mississippi, have enacted legislation. Consequently, geography and demographics are not relevant factors that should impede Arkansas from adopting some kind of landlord-tenant reform.

G. Rule of Decision in Arkansas

Propst believed that the Commission was responsible for the damage to his aircraft because the Commission had a duty to warn Propst of the latent defect in the hangar=s structure, or in the alternative, that the Commission retained the exclusive right to enter the hangar to make repairs,

174. Cf. U.C.C. 2-315 (1991) (AThe Implied Warranty of Fitness for Particular Purpose@). 175. IDAHO CODE 6-320 (1997) (providing that landlord=s failure to install smoke detectors, keep the premises in a safe and healthy condition, maintain electrical, plumbing, heating, cooling and sanitary facilities, and provide reasonable waterproofing will result in a cause of action for the tenant against the landlord for damages and specific performance). 176. N.H. REV. STAT. ANN. 48-A:14 (1995) (providing that a landlord may not rent a dwelling that is infested with rodents and insects, has a defective internal plumbing or sewage system, has exposed wires, a leaky roof or walls, falling plaster, unsound porches, stairs or railings, an accumulation of garbage in common areas, or has an inadequate supply of water). 177. WIS. STAT. ANN. 704.07 (West 1997) (providing that a landlord has a duty to keep in reasonable repair equipment for supplying necessary utilities and common areas under the landlord=s control, make necessary structural repairs, and comply with local housing codes). 178. See supra note 156. 179. See supra note 171. 180. See supra notes 124-25 and accompanying text. 181. See supra note 151. 182. See supra note 150. 183. See supra note 168. 184. See supra note 33 and accompanying text.


making the Commission liable for any damages resulting from the hangar=s disrepair.185 The Arkansas Supreme Court disagreed, contending that no Arkansas court has ever recognized the Alatent defect@ and Aretention of control@ exceptions to the common law rule of caveat lessee.186 However, the court did not cite a single decision that specifically said that Arkansas will not recognize these exceptions. Some commentators have pointed out that when the common law was adopted by the states, the whole of it was adopted by default, and it was up to courts and legislatures to specifically reject any unwanted portions.187

Section 1-2-119 of the Arkansas Code is clearly in line with this proposition: The common law of England, so far as it is applicable and of a general nature, and all statutes of the British Parliament in aid of or to supply the defects of the common law made prior to March 24, 1606, which are applicable to our own form of government, of a general nature and not local to that kingdom, and not inconsistent with the Constitution and laws of the United States or the Constitution and laws of this state, shall be the rule of decision in this state unless altered or repealed by the General Assembly of this state.188 Arkansas courts interpreting this statute under various common law doctrines have

unanimously declared that A[a] common law doctrine remains in effect in Arkansas unless the legislature enacts a statute that manifests the legislature=s clear intent to supersede the common law.@189

Consequently, in the absence of any law to the contrary, Arkansas should recognize all of the common law exceptions to the traditional rule of caveat lessee. Propst v. McNeill was wrongly decided and the court should have recognized that, just as the common law rule of caveat lessee has been a part of Arkansas law from the beginning, all of caveat lessees exceptions were carried over along with it. Certainly, the court is free to modify the common law upon sober consideration of its applicability to the modern world, but to simply say that no Arkansas court has recognized the Alatent defect@ and Aretention of control@ exceptions is not enough. There is no need for a court to affirmatively state which exceptions shall apply because they all apply, and they are all a part of the common law.

185. See supra notes 21-24 and accompanying text. 186. See supra notes 34-37 and accompanying text. 187. See ROSCOE POUND, ED., READINGS ON THE HISTORY AND SYSTEM OF THE COMMON LAW 267-69 (1925) (AThe universal principle . . . has been, that the common law is our birthright and inheritance, and that our ancestors brought hither with them, upon their emigration, all of which was applicable to their situation.@(quoting STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES, vol. 1 157 (1858))); ROSCOE POUND, THE HISTORY AND SYSTEM OF THE COMMON LAW, vol. 1 98-108 (1980) (stating that the portion of the English Common Law that was applicable to the local social, political, economic, and physical conditions was adopted in America). 188. ARK. CODE ANN. 1-2-119 (1987). 189. Lusby v. Union Pac. R.R. Co., 4 F.3d 639, 642 (8th Cir. 1993). See also Davis v. Baxter County Reg=l Hosp., 855 S.W.2d 303, 305 (Ark. 1993) (holding that the common law necessaries doctrine is the law in Arkansas and will remain so unless altered or repealed by the General Assembly); Smith v. Wright, 779 S.W.2d 177, 181 (Ark. 1989) (citing ARK. CODE ANN. 1-2-119, the court held that the Rule in Shelly=s case and the Statute of Uses were made part of Arkansas law via the English common law); Lucas v. Handcock, 583 S.W.2d 491, 497 (Ark. 1979) (holding that in the absence of a statute to the contrary, the common law will determine whether an illegitimate child can inherit from his father in Arkansas); Chester v. Arkansas State Bd. of Chiropractic Exam=rs, 435 S.W.2d 100, 102-03 (Ark. 1968) (holding that under the common law, court proceedings conducted on Sundays were void, and, absent a statute to the contrary, this is the law in Arkansas); Stewart v. Tucker, 188 S.W.2d 125, 128 (Ark. 1945) (holding that the common law of England must control in Arkansas when no statutory enactment has changed its law); McFall v. First Nat. Bank of Forrest City, 211 S.W. 919, 920 (Ark. 1919) (holding that the common law rule will be applied when there is no controlling Arkansas statute); Furth v. Furth, 133 S.W. 1037, 1038 (Ark. 1911) (holding that the English common law did not control because an Arkansas statute had specifically amended it).


IV. ANALYSIS

In Propst, the Arkansas Supreme Court reaffirmed Arkansas=s steadfast adherence to the traditional common law doctrines that most every other jurisdiction in the United States has either abolished statutorily or severely eroded judicially.190 Ultimately for the court, adherence to tradition outweighed recognition of reality. When faced with similar circumstances, however, other courts have come to much different conclusions.

In 1973, the Supreme Court of New Hampshire abolished the common law doctrine of landlord immunity for tenant injuries and replaced it with traditional tort principles.191 Landlords became obligated Ato exercise reasonable care not to subject others to an unreasonable risk of harm.@192

In Sargent v. Ross, a four-year-old child was killed when she fell from a second-floor outdoor stairway of a residential building.193 Since the plaintiff could not show that the landlord negligently repaired the stairway or that the landlord retained control of the stairway, the landlord was entirely immune from liability under the traditional common law doctrines in force at the time. The New Hampshire court had great difficulty accepting this result. Though respect for precedent and stability in the law are compelling considerations, the New Hampshire court decided that the more responsible path would be to keep pace with modern society and the accompanying trends in legal doctrines.194 In a case that exposed the favoritism landlords had been enjoying under the law, the New Hampshire court took the legal and moral high ground when it recognized that A>[j]ustifiable dissatisfaction with the rule of landlord tort immunity= . . . compels its reevaluation.@195

In order to establish liability on the part of the landlord, the tenant was required to show either an express undertaking by the landlord to repair or that the landlord retained control of the stairway, neither of which he was able to show. However, the tenants did not own the building or have any authority to make repairs to the structure and therefore could do nothing on their own to repair the stairway.196 The court was left with the unconscionable result of no party being legally responsible for dangerous conditions on the premises that had caused an injury, despite the fact that the landlord is normally best able to make repairs and remedy dangerous conditions, especially when substantial repairs are necessary.197 Indeed, the landlord would actually have a disincentive to make repairs since his doing so might be evidence of his retention of control.198

In some ways, the Propst case presents a situation similar to that faced by the Sargent court. Propst was not given permission to make any repairs to the structure on his own,199 and the Commission, which could have made the hangar structurally sound, failed to do so. If the hangar could have been shown to be negligently constructed, the Commission should have been obligated to compensate Propst for the damage to his aircraft. However, Arkansas=s landlord-tenant law finds no duty or obligation on the part of the Commission to act reasonably and to help prevent damage to its tenant=s property.

190. See supra note 121. 191. Sargent v. Ross, 308 A.2d 528 (N.H. 1973). 192. Id. at 534. 193. Id. 194. Id. 195. Id., at 530 (quoting 2 HARPER AND JAMES, LAW OF TORTS 1495, 1510 (1956)). See also Quinn and Phillips, The Law of Landlord-Tenant: A Critical Evaluation of the Past with Guidelines for the Future, 38 FORD. L. REV. 225 (1969). 196. Sargent, 308 A.2d at 532. 197. Id. 198. Id. 199. See supra note 23.


Admittedly, the death of a child is a more compelling reason for a court to make changes to outdated rules, but $13,000 in damage is significant, and Propst was forced to cover the repairs on his own. In any case, judging the worthiness of a rule of law in light of the damages suffered by a particular plaintiff is Aletting the tail wag the dog.@ If the court would find the common law doctrines outmoded under other circumstances, then failure to do so now only tells Propst that he is unfortunate that his damages were not severe enough to warrant closer judicial scrutiny.200

The fact that Propst involves a commercial lease and Sargent involves a residential lease should not be material in determining whether the landlord should be required to act as a reasonable person, as the Sargent court required of landlords in New Hampshire. Reasonable conduct is reasonable conduct, and although the nature of the lease and the amount of the rent may help determine the definition of Areasonable under the circumstances,@ these factors should not provide immunity for a landlord from the standard of conduct to which most people are held accountable.

One hundred years of tradition and the possible impact of expanding landlord liability convinced the Arkansas Supreme Court that the General Assembly would be the better arbiter for changes to landlord-tenant law. In general, the legislature, not the courts, establish public policy,201 and, on a number of occasions, the court has chosen to defer to the legislature.202 However, this does not mean that courts in Arkansas can never take independent steps to reform the law.

For example, in a recent case, Shannon v. Wilson,203 the Arkansas Supreme Court overturned a long-standing common law rule that a dram shop owner had no liability in tort for damages resulting from the sale of alcohol to minors.204 Arkansas=s rule went back to Carr v. Turner,205 a 1965 decision, when the majority of jurisdictions in the United States followed the common law approach of not imposing tort liability on liquor store owners.206 Consequently, the Arkansas court (in part because Ait did not wish to be in the minority of jurisdictions@)207 declined the opportunity to take a leading role in what became, decades later, a complete turnabout in social and legal thinking. Years later, Arkansas found itself in the considerable minority,208 clinging to a rule that was grounded in the ideology of the 1800s.209

Society has changed and, though stare decisis is still an important part of the Anglo-American legal tradition, the Arkansas Supreme Court has recognized in Shannon that, not only is the court free to amend the common law, it Ahas a duty to change the common law when it is no longer reflective of economic and social needs of society.@210 A[T]he field of common law is . . . the primary concern of [the] Court,@ and A[a]ccordingly, the Court, not the Legislature, should extirpate those rules of decision which are admittedly unjust, for it is to the judiciary that the

200. See supra note 37. Perhaps the court would have been more sympathetic if Propst had been in the airplane and severely injured at the time of the accident. 201. Davis v. Ross Prod. Co., 910 S.W.2d 209 (Ark. 1995). 202. See, e.g., McNew v. McNew, 559 S.W.2d 155 (Ark. 1977) (holding that changes in divorce law should be left to the General Assembly); White v. Maddux, 296 S.W.2d 679 (Ark. 1956) (holding that repeal of the common law rule that a cause of action dies with the tortfeasor is a matter for the General Assembly). 203. 947 S.W.2d 349 (Ark. 1997). 204. Id. 205. 385 S.W.2d 656 (Ark. 1965). 206. Shannon, 947 S.W.2d at 353. 207. Id. 208. See Id. at 353-56. Over three pages, the court cites the Aoverwhelming number of other jurisdictions which have found liability.@ 209. Id. at 352. The Arkansas rule created by Carr, see supra note 205 and accompanying text, was formulated on principles laid down in the 1800s when people walked or rode horses or rode in Ahorse-drawn carriages.@ Shannon, 947 S.W.2d at 352. 210. Id. at 353. See supra note 96 and accompanying text.


power of the government is given to provide protection against individual harm.@211 The court recognized that A[w]hen a judicially created rule becomes outmoded or unjust in its application, it is appropriate for the judiciary to modify it.@212 More importantly, however, failing to make changes would Alet others >long dead and unaware of the problems of the age in which he lives, do his thinking for him.=@213 Therefore, though legislative action may have been preferred by the court, in order to keep the law in line with current reality, years of legislative inactivity on this issue forced the court in Shannon to take proactive measures to reform the law.

The Shannon decision is almost the mirror image of the court=s decision in Propst. In both instances, the court was asked to reform a long-standing common law rule in Arkansas and move the law in line with the overwhelming majority of jurisdictions which have made reformations due to changing social and economic needs. In both cases, the law was based upon the principles and realities of centuries gone by. In Shannon, the court chose to by-pass the legislature and make reforms on its own. However, in Propst, the court declined to do so, even though, as Shannon makes clear, the court is not obligated to wait for the legislature to reform the common law.

Based upon the principles laid down in Shannon, and assuming the General Assembly declines to make legislative changes on its own, the Arkansas Supreme Court should take the next opportunity to make Arkansas=s law on landlord liability reflect current economic and social realities.

V. CONCLUSION

Arkansas began to follow caveat lessee at a time when most people lived in relatively simple structures, in stark contrast to the modern, more complex structures in which most Arkansans now live. Furthermore, the rule itself was formulated in Feudal England, forged in the days of king and serf, lord and servant, tenant farmer and indentured servant. Those things are gone for the most part today, and if they ever really were a part of the American landscape, they have long since faded into the grey and dusty pages of our history textbooks. Yet caveat lessee lives on in Arkansas, clinging to the rhetoric of its birthright.

Thus, even though Arkansas still steadfastly adheres to the ancient common law doctrine, the world has changed dramatically over the last century or so, and in almost all other jurisdictions, the law of landlord-tenant has changed with it. Arkansas is one of only four other jurisdictions in the United States that still adheres to the common law rule of caveat lessee,214 Aleav[ing] Arkansas standing in a rapidly shrinking circle holding hands with fewer and fewer states that have rigidly held to the ancient and impractical caveat lessee doctrine.@215

To the extent that Arkansas still adheres to the common law and does not recognize either the implied warranty of habitability or any kind of landlord liability statutes, Propst had a fairly weak case with the law as it now stands. But beyond that, in light of the fact that the Arkansas Supreme Court could have adopted reforms on its own,216 and probably should recognize all of the traditional exceptions to the common law rule,217 Propst v. McNeill was wrongly decided. As if stuck in some legal tar pit of days gone by, instead of evolving with the times, Arkansas has

211. Shannon, 947 S.W.2d at 353 (quoting Parish v. Pitts, 429 S.W.2d 45, 47 (Ark. 1968), citing Leon Green, Freedom of Litigation, 38 ILL. L. REV. 355, 382 (1944)). 212. Id. 213. Id. (citing Brigance v. Velvet Dove Restr., Inc., 725 P.2d 300 (Okla. 1986) (citing Bielski v. Schulze, 114 N.W.2d 105 (Wis. 1962) (quoting Mr. Justice Douglas, Stare Decisis, 49 COLUM. L. REV. 735, 736 (1949)))). 214. See supra note 121. 215. Brief for Appellant at 4, Propst v. McNeill, 932 S.W.2d 766 (Ark. 1996) (No. CA-95-1290). 216. See supra notes 203-13 and accompanying text. 217. See supra notes 185-89 and accompanying text.


remained one of the few states that have not enacted some kind of landlord-tenant reform. The Arkansas Supreme Court should have taken notice of the current legal trends and wiped away the residue of years of Ablind imitation of the past.@218

Consequently, in Propst v. McNeill, the Arkansas Supreme Court had an opportunity to recreate the landscape of landlord-tenant law in Arkansas. By choosing to deny the Commission=s summary judgment motion and allowing Propst to make his case and attempt to establish that the Commission, as landlords, had a duty to ensure that the hangar was free from dangerous defects at the time it was rented by Propst, Arkansas would have become one of the majority of states that recognized the need for a change in landlord-tenant law. Unfortunately, the court decided that adherence to age-old tradition precluded the court from taking action. As the Shannon case illustrates, however, the courts do have the authority and an obligation to society to change laws that are archaic and inapposite to current social needs. Almost every state has enacted tenant-reform legislation designed to protect tenants from the very Amarginal structures@ that the Commission argued needs to be preserved by the law.

The Arkansas General Assembly should take initiative and action in this regard. In addition, the Arkansas courts should recognize that all of the common law exceptions to the caveat lessee doctrine are part of Arkansas law, including those exceptions on which an Arkansas court has not yet spoken. Furthermore, when given the opportunity, Arkansas courts should adopt the implied warranty of habitability in Arkansas leaseholds to provide more remedies and greater protection for tenants living in Amarginal structures,@ and ensure that all Arkansans have habitable and decent living and working conditions.

STEPHEN J. MADDEX

218. Holmes, supra note 1.

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