BEFORE THE
COMMISSION OF LANDLORD-TENANT AFFAIRS
FOR MONTGOMERY COUNTY, MARYLAND
| In the Matter of Jonathan S. Hunn Complainant |
|
| v. | Case No. 10569 |
| Barry and Emily Wasser
Respondents |
The above captioned case having come before the Commission on Landlord-Tenant Affairs for Montgomery County, Maryland (the "Commission"), pursuant to Sections 29-10, 29-14, 29-41, and 29-44 of the Montgomery County Code, 2001, as amended, and the Commission having considered the testimony and evidence of record, it is therefore, this 12th day of February, 2002, found, determined, and ordered, as follows:
On August 10, 2000, Jonathan S. Hunn, (the “Complainant”), former tenant at 9469 Copenhaver Drive, Potomac, Maryland (the “Property”), a licensed single-family rental facility in Montgomery County, Maryland, filed a formal complaint with the Office of Landlord-Tenant Affairs within the Department of Housing and Community Affairs, (the “Department”), in which he alleged that Barry and Emily Wasser (the “Respondents”), owners of the Property: (1) failed to deliver the Property to him at the commencement of his tenancy in a clean, safe and sanitary condition, in violation of Section 29-26(n) of the Montgomery County Code, 1994, as amended (“County Code”), which caused him to prematurely terminate his tenancy; and (2) failed to make needed and necessary repairs to the Property, including elimination of rodent infestation and mold and mildew in the basement, in a timely manner after being put on notice by him and by the Department’s Division of Housing Code Enforcement, which constituted a substantial breach of the lease and resulted in the premature termination of his tenancy on July 27, 2000, one week after taking possession.
Specifically,
the Complainant asserts that: (1) he
originally viewed the Property on June 25, 2000, while it was still furnished and occupied
by the previous tenants; (2) on June 27, 2000, he signed a thirteen (13) month lease with
Respondent, Barry Wasser, and pre-paid July 2000 rent in the amount of $2,650.00; (3) on
July 20, 2000, he moved from Cincinnati, Ohio, to take possession of the Property; (4) at
the time he arrived at the Property, it was not clean, and he observed numerous
deficiencies that were not observable on June 25, 2000, including the presence of mold and
mildew and an infestation of rodents; (5) he immediately notified Respondent, Emily
Wasser, who informed him that “everybody has to do some cleaning when
By
correspondence dated
The
Respondents contend that: (1) at the time the Complainant took possession of the Property,
July 20, 2000, it was in need of some minor repairs and they were working to correct all
of the problems; (2) the previous tenant, Antonio Galicia, was responsible for cleaning
the Property when he vacated, but they do not know if Mr. Galicia did so; (3) although Mr.
Wasser was out of the country at the time the Complainant took possession of the Property,
the Complainant never gave him the opportunity to correct the problems before moving out;
(4) the Complainant breached the lease and abandoned the Property, which resulted in
re-rental expenses and lost rental income; and (5) the Complainant is not entitled to a
refund of pre-paid July 2000 rent.
The
Complainant is seeking an order from the Commission for the Respondents to refund his July
2000 rent payment, $2,650.00, plus the cost he incurred to hire an attorney, $540.00, for
a total award of $3,190.00.
After
determining that the complaint was not
susceptible to conciliation, the Department duly referred this case to the Commission for
its review, and on
The record reflects that the Complainant and the Respondents were given proper notice of the hearing date and time. Present at the hearing and presenting testimony and evidence were the Complainant Jonathan S. Hunn, the Respondents Barry Wasser and Emily Wasser, as well as three witnesses called by the Commission, the Department’s Inspector Sheila Williams (Retired), Program Manager, Linda Bird and Landlord-Tenant Investigator Rosie McCray-Moody.
Without objection from the Complainant or
the Respondents, the Commission entered into the record of the hearing the case file
compiled by the Department, identified as Commission’s Exhibit No. 1, which included
41 photographs of the Property submitted by the Complainant as part of his original
complaint. The Commission also accepted into
evidence at the hearing three (3) exhibits offered by the Complainant: (1) a copy of an
advertisement from the Washington Post newspaper, dated
Furthermore, the Commission extended the
time period within which it would decide this matter pursuant to Section 7.1 of Appendix
L, “Regulations on Commission on Landlord-Tenant Affairs” of Chapter 29 of the
Based on the testimony and evidence of record, the Commission makes the following findings of fact:
1.
On
previous tenant, the Complainant and Respondent, Barry Wasser, entered into a thirteen (13) month lease agreement for the rental of the Property (the “Lease”), which commenced on July 1, 2000, and was due to expire on July 31, 2001. The amount of the monthly rent for the Lease was $2,650.00.
2.
The Lease does not comply with Section 29-26(d) of the
does not contain a provision acknowledging the landlord’s responsibility for maintenance of the rental facility, and the Lease does not incorporate by reference Chapter 8, title “Buildings”, Chapter 22, title “Fire Safety Code, Chapter 26, title “Housing Standards,” and Chapter 29, title “Zoning,” of the County Code, as an express warranty of habitability and covenant to repair.
3.
The Lease does not comply with Section 29-26(n) of the
does not contain a covenant that the landlord will deliver the Property in a clean, safe and sanitary condition and in complete compliance with all applicable laws.
4.
On or about
for rent for the entire month of July
2000, even though it was never his intention to move into the Property prior to
5.
On or about
deposit in the amount of $3,000.00, which is receipted in the Lease.
6.
On
Property, at which time he noted numerous deficiencies, including suspected rodent infestation, non-locking sliding glass door, defective door locks, leaky faucets, mold and mildew in the basement, and general lack of cleanliness. The Commission credits the testimony of the Complainant that he immediately reported these problems to the Respondent, Emily Wasser.
7. The Commission finds credible the testimony of Respondent, Emily Wasser,
that upon hearing from the Complainant
about deficiencies in the Property on
8.
Based on a complaint filed by the Complainant on
he took possession of the Property, Inspector Sheila Williams, from the Department’s Division of Housing and Code Enforcement, inspected the Property and subsequently issued the Respondents a Notice of Violation citing them with 28 violations of the County’s Housing Code, including inoperative front entrance door locks, inoperative stove burners, deteriorated floor covering, and a loose handrail.
9. The Commission finds that at the time the Complainant took possession of the
Property, July 20, 2000, there were numerous deficiencies present, as evidenced by the 40 photographs submitted by the Complainant (See pages 10-23 of Commission’s Exhibit No.1), which fairly and accurately represent the condition of the Property on that date.
10. The Commission finds that based on the deficiencies, the Respondents did not
deliver the Property to the Complainant at
the commencement of his tenancy,
11.
On
Respondents, and stopped payment on his security deposit check.
12. In the opinion of the Commission, the Complainant was within his right to
terminate the Lease at the end of July 2000 based on the Respondents’ failure to deliver the Property to him in a clean and sanitary condition and in compliance with all applicable laws.
13. The Commission finds that there is not sufficient credible evidence or testimony
from the parties or the witnesses to
determine the existence of an infestation of mice in the Property on or after
14. The Commission does not find credible the testimony or evidence of the
Complainant that the condition of the Property on
or after
15. Although the Complainant was within his right to terminate the Lease, the
Commission finds that by vacating the Property on
16. The Commission finds that by vacating the Property the day after the Department
issued a Notice of Violation to the Respondents citing them for 28 violations of the County’s Housing Code, the Complainant did not provide the Respondents sufficient or reasonable time to correct the Housing Code violations contained in that Notice of Violation.
Accordingly, based upon a fair consideration of the testimony and evidence contained in
the record, the Commission of Landlord-Tenant Affairs concludes:
1. The Commission notes that Chapter 29, Landlord-Tenant Relations, of the County
Code has been amended, and that the amendments became effective as of
2. The fact that the Lease does not contain a provision acknowledging the Respondents’ responsibility for maintenance of the rental facility, and the Lease does not incorporate by reference Chapter 8, title “Buildings”, Chapter 22, title “Fire Safety Code, Chapter 26, title “Housing Standards,” and Chapter 29, title “Zoning,” of the County Code, as an express warranty of habitability and covenant to repair, constitutes a violation of Section 29-26(d) of the County Code, and has caused a defective tenancy.
3. The fact that the Lease does not contain a covenant that the landlord will deliver
the Property in a clean, safe and sanitary
condition and in complete compliance with all applicable laws, constitutes a violation of
Section 29-26(n) of the
4. The Respondents’ failure to deliver the Property to the Complainant at the
commencement of his tenancy in a clean and sanitary condition, and in complete compliance with all applicable laws, constitutes a violation of Section 29-26(n) and 29-30(a), and has caused a defective tenancy.
5. Because of the foregoing, there was a defective tenancy, and the Complainant was
within his right to terminate the Lease, and he is entitled to relief from any obligations under the terms of the Lease after the end of July 2000.
6. Based on consideration of the level and nature of deficiencies and Housing Code
violations at the Property, and based on consideration of whether the Respondents had notice of the violations and reasonable opportunity to cure them, the Commission finds that the Complainant is not entitled to the return of all rent paid for the Property for July 2000, and therefore his request for an award of $2,650.00 for July rent is DENIED.
7. Regarding the Complainant’s request for reimbursement of attorney’s fees related
to his claim, pursuant to Section 29-43(b)(4) of the County Code, the Commission is authorized to make an award of reasonable attorney’s fees, not to exceed $1,000.00, if it makes an affirmative finding of retaliatory action on the part of the Landlord, and that the fees were incurred by the affected tenant in defense of the retaliatory action. No such claim of retaliation has been made in this case by the Complainant, and therefore, his request for an award of $540.00 in attorney’s fees is DENIED.
In view of the foregoing, the Commission on Landlord-Tenant Affairs hereby Orders that the Complainant’s request for a refund of July 2000 rent and reimbursement for attorney’s fees is DENIED; and his complaint is hereby DISMISSED.
Commissioners John Peterson and Martin Schnider, Jr., Chair, concurred in the foregoing decision. However, Commissioner Travis Nelson dissented, and a copy of his Dissenting Opinion is attached hereto.
Any party aggrieved by
this action of the Commission may file an administrative appeal to the Circuit Court for
_________________________________
Martin Schnider, Jr., Panel Chairperson
Commission on Landlord-Tenant Affairs
FOLLOWING IS A DISSENTING OPINION
BEFORE THE
COMMISSION OF LANDLORD-TENANT AFFAIRS
FOR MONTGOMERY COUNTY, MARYLAND
| In the Matter of Jonathan S. Hunn Complainant |
|
| v. | Case No. 10569 |
| Barry and Emily Wasser
Respondents |
DISSENTING OPINION
I must respectfully dissent from the opinion of my colleagues. Under my colleagues’ interpretation, this case
involves a breach of warranty, and under such, the tenant is required to notify the
landlord of any defects and allow a reasonable amount of time for the landlord to cure
such defects. In order for there to be a
warranty from the landlord to the tenant to breach, there must first exist
a landlord-tenant relationship manifested by a valid contract. If there was no contract from the beginning, then
there can be no warranties flowing from that contract.
A fundamental principle of contract construction is to ascertain and effectuate the
intentions of the contracting parties, unless that intention is at odds with established
principles of law. B & P Enterprises v. Overland Equipment Co.,
758 A.2d 1026 (
A standard residential lease agreement is essentially a bilateral contract - a
contract where each party promises to do something in exchange for the other party’s
promise to do something else. In this case,
the Respondents promised to furnish a residential dwelling that was clean, safe and
habitable in condition. In return for
Respondents’ promise to furnish such a dwelling, the Complainant promised to pay the
agreed upon amount of $2,650.00. Under the
lease agreement, the Complainant was to pre-pay the rent due for July 2000 and
Complainant’s property interest in the dwelling would vest on July 1, 2000, even
though he would not take actual possession of the dwelling until July 20, 2000.
The narrow issue in this case is whether the parties received what they bargained
for as of the date that reciprocal performance was due, that date being July 1, 2000. This panel is in unanimous agreement that as of the
day of the conveyance of the leasehold,
In
order for the Complainant to recover damages for breach of contract he must prove that the
Respondents breached the contract and that the Complainant did not himself commit a
material breach of contract. A breach is
“material” if it affects the purpose of a contract in an important
or vital way. A material breach by one party
to a contract relieves the other party of its obligation to
perform under that contract. K & K Management, Inc. v. Lee,
557 A.2d 965 (
The majority opinion would appear to confirm this notion that the landlord’s breach
stemmed from the very inception of the lease. In
its conclusions of law, at paragraph three, the majority confirms that because of the fact
that the Lease failed to contain a covenant that the dwelling would be delivered in a
clean, safe and sanitary condition and in compliance with all applicable laws, a defective
tenancy exists. Further, at paragraph
four, because of the “failure to deliver the Property to the Complainant at the
commencement of his tenancy in a clean and sanitary condition, and in compliance with laws...[Respondents have] caused a defective tenancy.” The majority neglects to recognize the significance
of its own conclusions — that by “fail[ing] to
deliver” the unit “at the commencement of the tenancy” in the bargained for
condition, the landlord’s breach existed from the very beginning.
The law in this state is clear: “Where...there has been a material breach of a
contract by one party, the other party has a right to rescind it.” Washington Homes, Inc. v. Interstate Land Development
Co., Inc., 382 A.2d 555 (
I believe that the Complainant’s request for reimbursement of July rent should be
granted, and that all Complainant’s and Respondents’ other requests should be
denied.
The majority this day treads on potentially dangerous precedent for landlord-tenant
relations in this County. According to the
majority, a landlord is free to convey a leasehold in
residential property even though that property is in violation of our health and safety
laws, and it is only if the tenant complains loud enough that the landlord will be forced
to bring the property into compliance with the Code. This
situation is exactly the sort of “unequal bargaining power between landlords and
tenants” that the County Council was attempting to remedy when it drafted Chapter 29
and established the Commission on Landlord-Tenant Affairs.
The County Council found it “necessary and appropriate” that the
Commission is established in order “to facilitate fair and equitable arrangements,
foster the development of housing that will meet the minimum standards of the present day
and promote the health, safety and welfare of the people.”
Believing that the majority’s opinion is bad law and bad for
____________________________________
Travis P. Nelson, Commissioner
Commission on Landlord-Tenant Affairs