Hightower v. Daniel , 143 Ga. App. 217 ( 1977 )

143 Ga. App. 217 (1977) 237 S.E.2d 688

HIGHTOWER
v.
DANIEL.

54161.

Court of Appeals of Georgia.

Submitted June 27, 1977. Decided September 7, 1977.

George H. Freisem, III, for appellant.

John C. Tyler, for appellee.

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 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.

Judgment reversed. McMurray and Smith, JJ., concur.