Hannan v. Harper

Owen, J. The appellant contends that there was at least an implied agreement between him and Harper, at the time of the execution of the lease, that the upper flat was to be used for residence purposes only during the term covered by the lease. There is no express provision to that effect in the lease, and the principle that all preliminary conversations and agreements leading up to the execution of a written contract are conclusively presumed to have been embodied in the written contract obtains. But the further contention is made that such a covenant is to be implied from the fact that the building was constructed for residential purposes and had been devoted to such purposes at all times prior to the execution of the lease, and that the parties were presumed to have'that situation in mind at the time of the execution of the lease, and that a covenant limiting the use of the remaining portion of the premises to residential purposes only is to be imported into the lease by implication. Reliance is placed upon Gedge v. Bartlett (Eng. Ch.) 17 T. L. R. 43; Alexander v. Mansions Proprietory (Eng. Ch.) 16 T. L. R. 431; and Hudson v. Cripps, [1896] 1 Ch. Rep. 265. From an examination of those cases it appears that the court found an express provision in the lease in each instance which prohibited the landlord from devoting the remainder of the premises to the use from which he was enjoined. For example, in Hudson v. Cripps, supra, the defendant leased to the plaintiff one of the flats contained in a large apartment building. The lease provided, among other things, that the lessee should not use the premises, or any part thereof, otherwise than for the — 595 — purpose of dwelling rooms. It appeared that this provision was in the lease for every flat of the entire building. The court held that this constituted a plan or scheme for the management and operation of the building which inured to the benefit of every tenant of the building. None of the cases cited is authority for the proposition that existing conditions for the uses to which premises have been put can be invoked to supply an implied covenant such as is 0here contended for. Our attention has been called to no case supporting such a doctrine. Plaintiff is not entitled to any relief upon the theory that the lease by its terms, express or implied, prohibits the landlord from using the remainder of the premises for a purpose other than that of a family residence. However, it seems to be well settled in this state that there is an implied covenant for quiet enjoyment in every lease for a term of less than three years. Eldred v. Leahy, 31 Wis. 546; Koeber v. Somers, 108 Wis, 497, 84 N. W. 991; Goldman v. Dieves, 159 Wis. 47, 149 N. W. 713. This lease was for a term less than three years. It therefore contained an implied covenant for quiet enjoyment. This is a covenant relating to the possession of the property, and, it is broken by an entry and expulsion from or actual disturbance of such possession. There is some conflict in the authorities as to whether the covenant of quiet enjoyment is breached by a constructive eviction. It is stated, however, in 15 Corp. Jur. 1280, 1281, that the weight of authority as well as the better reason is that any actual disturbance of the possession equivalent to an eviction, by one having a lawful and paramount title at the time of its execution, is a breach of the covenant. The case of Durbin v. Shenners, 133 Wis. 134, 113 N. W. 421, is cited as supporting .that proposition. While it is stated in that case that a breach of the covenant for quiet enjoyment results only from an eviction, actual or constructive, from the whole or part of the — 596 — premises, it is not held that a constructive eviction does constitute a breach of the covenant for quiet enjoyment. However, we think that such is the logical if not the inevitable conclusion from the following cases: Eldred v. Leahy, 31 Wis. 546; Silber v. Larkin, 94 Wis. 9, 12, 68 N. W. 406; Wade v. Herndl, 127 Wis. 544, 107 N. W. 4. Thus in Silber v. Larkin, supra, p. 12, it is said: “An actual expulsion from leased premises is not necessary to constitute an eviction. Any act on the part of the-landlord which so interferes with the tenant’s possession of the leased premises as to unfit them for the purposes for which they were leased, and render them uninhabitable for such purposes, and compel the abandonment thereof, constitutes an eviction. . . . Such an eviction furnishes ground for an action for such damages as are the natural and proximate consequences thereof.” And in Wade v. Herndl, supra, it is declared: “The law governing the rights and liabilities of landlord and tenant, in cases wherein the tenant asserts eviction from the premises, is that actual expulsion is not necessary, but that any act of the landlord or of any one who acts under authority or legal right given him by the landlord which so disturbs the tenant’s enjoyment of the premises as to render them unfit for occupancy for the purposes for which they are leased, is an eviction, and, whenever it takes place, the tenant is released from the obligation under the lease to pay rent accruing thereafter.” In Eldred v. Leahy, supra, it is made plain that conduct which deprives a tenant of the full use of the premises for which they were leased constitutes a breach of the covenant for quiet enjoyment. We therefore conclude that the landlord, the defendant Harper, was bound to the plaintiff by a covenant for quiet enjoyment, which the law imports into the written lease by implication, and the question is whether the occupancy of the upper flat as the headquarters and club rooms of a col — 597 — lege fraternity amounts to a breach of that covenant. If the occupancy of the upper flat by the college fraternity as a club and headquarters renders the lower flat unsuitable for residential purposes, the result will amount to a plain breach of the covenant for quiet enjoyment. In denying' the injunction the lower court said: “In order to continue the temporary injunction, the court would be obliged to hold that the members of the fraternity mentioned and college students as a class are not law-abiding citizens, but on the contrary are given to carousing, boisterous conduct, and generally to annoying citizens without provocation or excuse. The court cannot so hold.” This statement reveals an erroneous view of the 'law. In order for the presence of the fraternity in the upper flat to render the lower flat unsuitable for residential purposes, it is not necessary that the members of the college fraternity, resorting to the second flat as their headquarters and club, should be lawless citizens or given to carousing or boisterous conduct. The upper flat might be devoted to many lawful purposes not amounting to a nuisance which would be clearly inconsistent with the occupancy of the lower flat for residential purposes and render the lower flat .entirely unfit and unsuitable for such purposes. The burden of showing that the members of the -fraternity are undesirable citizens, or that they behave in a boisterous and unseemly manner, or that the fraternity itself constitutes a nuisance, does not rest upon the plaintiff. He is entitled to relief if it appears that the occupancy of the upper flat by this fraternity as its headquarters and club renders the lower flat unfit or undesirable as a place of family residence. Should such conclusion be reached, it will constitute no reflection whatever upon the fraternity or its membership. It will do no more than to merely indicate that the purposes, objects, and activities of the fraternity are incompatible, and will interfere, with established and well recognized incidents and attributes of — 598 — home life. Among those incidents safely may be mentioned privacy, quiet, and repose. That the privacy of the plaintiff and the members of his family will be seriously interfered with, cannot be doubted. There are from thirty to forty members in this fraternity. Their club and headquarters will be established in the upper flat. In order to reach the upper flat they will be in constant use of the common porch, the common vestibule, and the common hallway. That they will be using these avenues of ingress and egress to and from their headquarters during hours of the night, not unreasonably perhaps in relation to club and fraternity life, but at hours interfering with the sleep and repose of the members of the plaintiff’s family, cannot be doubted. Neither can it be questioned that activities and indulgences, conforming in every respect to well established and proper conduct when confined to fraternity headquarters, give rise to noises and disturbances incompatible with family life in such close relation to such club headquarters. The presence of the club in the upper flat will work a complete change in the atmosphere and in the activities in and about the premises, and will render the lower flat much less fit, if not in fact impossible, as'and for aplace of'family residence. It seems unnecessary to pursue the subject further. The conclusion which we reach is but the intuitive judgment of every member of a household of ordinary sensibilities. Fraternity and club life is antagonistic to family life. Fraternities and clubs are organized and maintained because they are something different from the home, and for the purpose of providing a’plAce for freedom of action not ordinarily indulged in the well regulated home. Conduct at times indulged and tolerated in the club and in the fraternity is annoying and disturbing to family life in such close proximity to the club as is plaintiff’s flat to thé proposed fraternity headquartefs. We cannot doubt that the presence of the club in the upper flat will compel the plaintiff to abandon the lower flat as a place of residence. This will result in — 599 — a constructive eviction and a breach of the implied covenant for quiet enjoyment. Injunction is freely used by the courts to prevent the breaches of such covenants. 4 Pomeroy, Eq. Jur. (4th ed.) §§ 1707, 1709; Shaft v. Carey, 107 Wis. 273, 83 N. W. 288; Lynch v. Union Institution, 158 Mass. 394, 33 N. E. 603; Hovnanian v. Bedessern, 63 Ill. App. 353; Bristol Hotel Co. v. Pegram, 49 Misc. 535, 98 N. Y. Supp. 512; Neiman v. Butler, 19 N. Y. Supp. 403. We see no reason why the injunction should not be granted in the instant case. The lease has but a short time to run, and no great injury will result to the defendant by protecting .the plaintiff in the rights to which he is entitled under the terms of the lease. By the Court. — Order reversed, and cause remanded with instructions to grant the temporary injunction.