Hightower v. Daniel

Court of Appeals of Georgia

Hightower v. Daniel

237 S.E.2d 688, 143 Ga. App. 217, 1977 Ga. App. LEXIS 2256

CourtCourt of Appeals of Georgia

DecidedSeptember 7, 1977

Docket54161

StatusPublished

Cited by4 cases

This text of 237 S.E.2d 688 (Hightower v. Daniel) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Hightower v. Daniel, 237 S.E.2d 688, 143 Ga. App. 217, 1977 Ga. App. LEXIS 2256 (Ga. Ct. App. 1977).

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Opinion

Bell, Chief Judge.

Plaintiff who had leased his house to defendant brought this suit for rent.

The trial court after making findings of fact, concluded as a matter of law that defendant had established the affirmative defense of constructive eviction and a judgment for defendant was entered. Held:

Two essential elements must be shown to establish the defense of constructive eviction. They are: (1) That the landlord in consequence of his failure to keep the rented building repaired allowed it to deteriorate to such an extent that it had become an unfit place for the defendant to carry on the business for which it was rented, and (2) that it could not be restored to a fit condition by ordinary repairs which could be made without unreasonable interruption of the tenant’s business. Overstreet v. Rhodes, 212 Ga. 521, 523 (93 SE2d 715); Alston v. Ga. Credit Counsel, 140 Ga. App. 784 (232 SE2d 134). These elements were not supported by the evidence. It was *218 shown that water leaked into the house on two occasions in June 1976, but it was not established that this leakage caused the house to be an unfit place to live. Secondly, there was not the slightest bit of evidence concerning the second element. Accordingly, as the evidence does not authorize the defense of constructive eviction, it was error to grant defendant a judgment for that reason.

Submitted June 27, 1977 Decided September 7, 1977. George H. Freisem, III, for appellant. John C. Tyler, for appellee.

Judgment reversed.

McMurray and Smith, JJ., concur.

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Bell, Chief Judge.

Plaintiff who had leased his house to defendant brought this suit for rent.

The trial court after making findings of fact, concluded as a matter of law that defendant had established the affirmative defense of constructive eviction and a judgment for defendant was entered. Held:

Two essential elements must be shown to establish the defense of constructive eviction. They are: (1) That the landlord in consequence of his failure to keep the rented building repaired allowed it to deteriorate to such an extent that it had become an unfit place for the defendant to carry on the business for which it was rented, and (2) that it could not be restored to a fit condition by ordinary repairs which could be made without unreasonable interruption of the tenant’s business. Overstreet v. Rhodes, 212 Ga. 521, 523 (93 SE2d 715); Alston v. Ga. Credit Counsel, 140 Ga. App. 784 (232 SE2d 134). These elements were not supported by the evidence. It was *218 shown that water leaked into the house on two occasions in June 1976, but it was not established that this leakage caused the house to be an unfit place to live. Secondly, there was not the slightest bit of evidence concerning the second element. Accordingly, as the evidence does not authorize the defense of constructive eviction, it was error to grant defendant a judgment for that reason.

Submitted June 27, 1977 Decided September 7, 1977. George H. Freisem, III, for appellant. John C. Tyler, for appellee.

Judgment reversed.

McMurray and Smith, JJ., concur.

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237 S.E.2d 688, 143 Ga. App. 217, 1977 Ga. App. LEXIS 2256, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hightower-v-daniel-gactapp-1977.

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