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Willard v. Parsons Hill Partnership8/5/2005
sion on patent, but not latent, defects. See ante, 22. Ultimately, the majority concludes that requiring notice for latent defects "serves no similarly important or logical purpose." Id. 20. In my view, the majority's rationale involves imperfections that often inhere in legislation. The Legislature rarely predicts every eventuality and covers it in the resulting legislation. See Colwell v. Allstate Ins. Co., 2003 VT 5, 10-15, 175 Vt. 61, 819 A.2d 727 (construing a statute according to its express terms even though legislative history suggested that the Legislature overlooked the statute's application in one particular context). In responding to concerns of landlords, the drafting committee may well have gone further than necessary to protect their legitimate interest. These imperfections are not grounds for refusing to apply a clear legislative requirement, however much we may disagree with it. In my view, the Legislature's inattention to the question of latent defects, and the RRAA's consequent imperfection as it relates to those defects, cannot justify the majority's interpretation of the statutory scheme.
47. There is a much more obvious reason why the Legislature would construct a warranty-of-habitability scheme without distinguishing between latent and patent defects, and that reason involves an appropriate interaction between the statute and the common law. In this case, plaintiffs seek damages for the anguish they have suffered since discovering that, without any prior warning, they exposed themselves and their children to a dangerous chemical whose future health effects are unknown. Plaintiffs did not need either a common-law or statutory warranty of habitability to bring this claim. Defendants' failure to disclose the water contamination is actionable under a long-recognized exception to the caveat lessee doctrine. Thus, plaintiffs' inability to recover is created not by the notice provisions of the RRAA, but instead by their choice of liability theory.
48. Before the adoption of the implied warranty of habitability in residential rental agreements, the common law recognized the harshness of the caveat lessee doctrine with respect to latent defects known to the landlord. R. Schoshinski, American Law of Landlord and Tenant § 3:12 (1980). An exception to the doctrine emerged that made a landlord liable for latent defects that the landlord knew about at the time of the tenant's entry, but failed to disclose to the tenant. Id.; 1 H. Tiffany, The Law of Landlord and Tenant § 86, at 562 (1910); 1 J. Taylor, The American Law of Landlord and Tenant § 382, at 482 (9th ed. 1904). The landlord's liability arose from his silence about the latent defect because the landlord owed no duty to repair the premise under the common law. Maywood v. Logan, 43 N.W. 1052, 1053 (Mich. 1889); Steefel v. Rothschild, 72 N.E. 112, 114 (N.Y. 1904); Tucker v. Hayford, 75 P.3d 980, 984 (Wash. Ct. App. 2003); see also Schoshinski, supra § 3:12, at 111 (discussing various remedies for landlord's nondisclosure of dangerous and known latent defect the tenant is not likely to discover). For example, a landlord's failure to disclose water contamination to his tenants stated a common-law cause of action under this theory in a Washington case. Tucker, 75 P.3d at 984. In that case, the landlord was aware of the water contamination and the need to test the water system periodically. The tenants were unaware of the contamination, and they later became ill from it after consuming the water. The Tucker court explained that, although the common law did not require the landlord to discover or repair obscure defects existing when the tenant takes possession, the landlord is liable for not disclosing " 'known dangers which are n
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