Dickhut v. Norton , 45 Wis. 2d 389 ( 1970 )

Beilfuss, J.

The issue is whether a tenant, in an unlawful detainer action, can assert as a valid defense an allegation that the landlord’s attempt to terminate the tenancy and evict the tenant was motivated as retaliation for the tenant’s complaint to the health authorities of a housing code sanitary violation.

The defendant contends that he has a federally guaranteed constitutional right to make such complaints and that for a state to permit such retaliation violates or abridges his constitutional rights. He further contends that public policy of this state as expressed or derived from housing laws, health laws, and local ordinances would be frustrated if he is not permitted to assert this defense.

Pertinent statutory provisions as to terminating tenancies and eviction proceedings are as follows:

“234.03 Tenancies, how terminated. Whenever there is a tenancy at will or by sufferance, created in any manner, the same may be terminated by giving at least 30 days’ notice in writing to the tenant requiring him to remove from the demised premises, or by the tenant’s giving at least 30 days’ notice in writing that he shall remove from said premises, and by surrendering to the landlord the possession thereof within the time limited in such notice; . . .”

“291.01 Proceedings to remove tenant, etc., holding over. In the following cases any tenant or lessee at will, or by sufferance, or for any part of a year, or for one or more years of any real property, including a specific or undivided portion of a house or other dwelling, and the assigns, undertenants or legal representatives of such tenant or lessee may be removed therefrom in the manner prescribed in this chapter, except that nothing herein contained shall affect the provisions of section 234.19:

“(1) When such person holds possession after the expiration of the term by lapse of time or after such tenancy at will or sufferance has been terminated by either party in the manner provided in sections 234.03 and 234.04, and without the permission of the landlord.”

“291.05 Action, how commenced. The plaintiff shall file with the county court or with a municipal justice of the city, town or village where the premises are located, a complaint signed by him, his agent or attorney, giving therein a description of the premises of which possession is claimed, stating the facts which authorize the removal of the defendant, naming him, and praying for his removal. If the complaint is filed in the county court the provisions of ch. 299 with respect to pleading and practice shall apply. . . .”

“291.07 Proceedings and pleadings. After the return of the summons served as above provided, and at the time and place named therein, if the defendant appear he may answer the complaint; and all matters in excuse, justification or avoidance of the allegations of the complaint must be answered specifically; and thereupon the justice shall proceed to hear and determine the action unless he shall adjourn the trial as provided in s. 291.08; but either party may demand a trial by jury. The proceedings in such action shall be the same as in other civil actions in a municipal court except as in this chapter otherwise specially provided.”

The argument of the defendant upon constitutional grounds is that the first amendment of the United States Constitution guarantees to him the right to petition his government for redress of grievances as well as what he labels the inherent right to report violations of the law (housing code violations) to appropriate authorities.

The first amendment provides, in part: “Congress shall make no law . . . abridging . . . the right of the people ... to petition the Government for a redress of grievances.” And the fourteenth amendment provides, in part: “. . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The right protected by the first and fourteenth amendments is that the government shall not make laws to abridge these rights. Here, it is the action of one private party as against another that is complained of. Neither the legislature by statute, nor the city council by ordinance, have in any way prohibited the defendant from. complaining of housing code violations. The argument, supported to some extent by the cases cited by the defendant, is that the state, by legislatively and judicially affording a means to the plaintiff to evict him because of the exercise of his first amendment rights, is acting in violation of the federal constitution.

While we express our reservations as to whether the facts and factors of this action bring it within the concept proposed by the defendant, we find it unnecessary to reach the constitutional question because of our opinion that the legislative public policy of this state permits the defense to be raised.

There can be no doubt that the legislature and the common council of the city of Milwaukee have both recognized that blighted, substandard and insanitary housing conditions do exist and that they are detrimental to the public interest.

Sec. 66.435, Stats., known as the Urban Renewal Act, provides:

“(2) Findings. It is hereby found and declared that there exists in municipalities of the state slum, blighted and deteriorated areas which constitute a serious and growing menace injurious to the public health, safety, morals and welfare of the residents of the state, and the findings and declarations made before August 3, 1955 in s. 66.43 (2) are in all respects affirmed and restated; that while certain slum, blighted or deteriorated areas, or portions thereof, may require acquisition and clearance, as provided in s. 66.43, since the prevailing condition of decay may make impracticable the reclamation of the area by conservation or rehabilitation in such a manner that the conditions and evils hereinbefore enumerated may be eliminated, remedied or prevented, and to the extent feasible salvable slum and blighted areas should be conserved and rehabilitated through voluntary action and the regulatory process; and all acts,and purposes provided for by this section are for and constitute public uses and are for and constitute public purposes, and that moneys expended in connection with such powers are declared to be for public purposes and to preserve the public interest, safety, health, morals and welfare. Any municipality in carrying out the provisions of this section shall afford maximum opportunity consistent with the sound needs of the municipality as a whole to the rehabilitation or redevelopment of areas by private enterprise.” ²

The city of Milwaukee, in almost identical language, found such conditions to exist in its housing ordinance:

“It is hereby found and declared that premises exist within the City of Milwaukee which are blighted because there exist thereon blighted buildings or other structures, either occupied or unoccupied by human beings, and such buildings or other structures are blighted because faulty design or construction, or failure to keep them in a proper state of repair, or lack of proper sanitary facilities, or lack of adequate lighting or ventilation, or inability to properly heat, or improper management, or any combination of these factors has resulted in such buildings or structures becoming so deteriorated, so dilapidated, so neglected, so overcrowded with occupants, or so insanitary as to jeopardize or be detrimental to the safety, morals, or welfare of the people of the city. It is hereby further found and declared that such blighted premises and such blighted buildings or other structures contribute to the development of, or increase in, disease, infant mortality, crime, and juvenile delinquency; that conditions existing on such blighted premises are dangerous to the safety, morals, and general welfare of the people; that conditions existing on such blighted premises necessitate excessive and disproportionate expenditure of public funds for public safety, crime prevention, fire protection, and other public services; that the conditions existing on such blighted premises cause a drain upon public revenue and impair the efficient and economical exercise of governmental functions in such areas. It is hereby further found and declared that, the elimination of blighted premises and the prevention of occurrence of blighted premises in the future is in the best interests of the citizens of this city, of the State of Wisconsin, and of the entire United States; and that the accomplishment of this end will be fostered and encouraged by the enactment and enforcement of this ordinance. The enactment and enforcement of this ordinance is hereby declared to be essential to the public interest, and it is intended that this ordinance be liberally construed to effectuate the purposes as stated heretofore in this ordinance.” (Sec. 75, part 2)

This court, heretofore, has taken cognizance of the legislative policy in the area of urban blight and housing code regulations. In Pines v. Perssion (1961), 14 Wis. 2d 590, 595, 596, 111 N. W. 2d 409, the court stated:

“Legislation and administrative rules, such as the safe-place statute, building codes, and health regulations, all impose certain duties on a property owner with respect to the condition of his premises. Thus, the legislature has made a policy judgment — that it is socially (and politically) desirable to impose these duties on a property owner — which has rendered the old common-law rule obsolete. To follow the old rule of no implied warranty of habitability in leases would, in our opinion, be inconsistent with the current legislative policy concerning housing standards. The need and social desirability of adequate housing for people in this era of rapid population increases is too important to be rebuffed by that obnoxious legal cliché, caveat emptor. Permitting landlords to rent ‘tumble-down’ houses is at least a contributing cause of such problems as urban blight, juvenile delinquency, and high property taxes for conscientious landowners.”

It is our opinion that public policy as espoused in ch. 66, Stats., clearly indicates that the legislature intended that housing code violations should be reported. If a landlord could terminate a tenancy solely because his tenant had reported a violation the intention of the legislature would be frustrated.

In a case decided by the United States Court of Appeals, District of Columbia, Edwards v. Habib (1968), 397 Fed. 2d 687, 701, 702, involving almost the identical problem, the court stated:

“In trying to effect the will of Congress and as a court of equity we have the responsibility to consider the social context in which our decisions will have operational effect. In light of the appalling condition and shortage of housing in Washington, the expense of moving, the inequality of bargaining power between tenant and landlord, and the social and economic importance of assuring at least minimum standards in housing conditions, we do not hesitate to declare that retaliatory eviction cannot be tolerated. There can be no doubt that the slum dweller, even though his home be marred by housing code violations, will pause long before he complains of them if he fears eviction as a consequence. Hence an eviction under the circumstances of this case would not only punish appellant for making a complaint which she had a constitutional right to make, a result which we would not impute to the will of Congress simply on the basis of an essentially procedural enactment, but also would stand as a warning to others that they dare not be so bold, a result which, from the authorization of the. housing code, we think Congress affirmatively sought to avoid.

_ “The motion that the effectiveness of remedial legislation will be inhibited if those reporting violations of it can legally be intimidated is so fundamental that a presumption against the legality of such intimidation can be inferred as inherent in the legislation even if it is not expressed in the statute itself.”

In addition it was said in Edwards v. Habib, supra, pages 699-701:

“. . . while the landlord may evict for any legal reason or for no reason at all, he is not, we hold, free to evict in retaliation for his tenant’s report of housing code violations to the authorities. As a matter of statutory construction and for reasons of public policy, such an eviction cannot be permitted.

“. . . the codes obviously depend in part on private initiative in the reporting of violations. . . To permit retaliatory evictions, then, would clearly frustrate the effectiveness of the housing code as a means of upgrading the quality of housing . . . .”

We likewise conclude that a landlord may terminate a tenancy at will or from month to month (or lesser periods) for any legitimate reason or no reason at all, but he cannot terminate such tenancy simply because his tenant has reported an actual housing code violation as a means of retaliation.

We therefore hold that the defendant can raise the defense of retaliatory eviction. To be successful in this defense, however, he must prove by evidence that is clear and convincing that a condition existed which in fact did violate the housing code, that the plaintiff-landlord knew the tenant reported the condition to the enforcement authorities, and that the landlord, for the sole purpose of retaliation, sought to terminate the tenancy.

A question was raised at oral argument regarding the repercussions in landlord-tenant law of the creation of a defense of retaliatory eviction. It was observed that the logical extension of such a rule would be to create a permanent tenancy as long as a jury could be convinced of the landlord’s evil motive. The analysis of the District of Columbia Court of Appeals in Edwards v. Habib, supra, pages 702, 703, tends to shed some light on this problem:

“This is not, of course, to say that even if the tenant can prove a retaliatory purpose she is entitled to remain in possession in perpetuity. If this illegal purpose is dissipated, the landlord can, in the absence of legislation or a binding contract, evict his tenants or raise their rents for economic or other legitimate reasons, or even for no reason at all. The question of permissible or impermissible purpose is one of fact for the court or jury, and while such a determination is not easy, it is not significantly different from problems with which the courts must deal in a host of other contexts, such as when they must decide whether the employer who discharges a worker has committed an unfair labor practice because he has done so on account of the employee’s union activities. As Judge Greene said, ‘There is no reason why similar factual judgments cannot be made by courts and juries in the context of economic retaliation [against tenants by landlords] for providing information to the government.’ ”

By the Court. — Judgment reversed and a new trial ordered consistent with this opinion. No costs to be awarded because of failure to comply with the rule set forth in sec. (Rule) 251.38 (1), Stats.

2 Several other statutes recognize like housing conditions. See secs. 66.40, 66.405, 66.43 and 66.431, Stats.