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Willard v. Parsons Hill Partnership8/5/2005
provide "notice under 9 V.S.A. Section 4458 that Parsons Hill Partnership and Yvonne Rooney are in breach of their obligations for habitability with regard to the water at the Parsons Hill apartments." Section 4458 is the warranty-of-habitability enforcement provision in the Residential Rental Agreements Act. Apparently in response to the tenants' concerns, the State brought a temporary water system to Parsons Hill to provide the tenants with contaminant-free drinking and cooking water.
6. The following month, the eight tenant families who sent the partnership notice under the statute, along with a number of other tenant families, filed a complaint for damages against various individual partners, corporations, and the partnership. Among other things, their complaint alleged that the partnership violated the common-law warranty of habitability by failing to remedy the water contamination within a reasonable time after first receiving the State's notice describing the problem in 1983. Despite having referenced the statute in their notice letter, the tenants did not assert a statutory claim. Specifically, they alleged that the water contamination that the partnership and its individual partners failed to remedy for approximately fourteen years was a habitability defect that the tenants were incapable of discovering because of its latent nature and its origin in a facility controlled and operated by the partnership.
7. Plaintiffs' complaint alleged that for fourteen years, several state officials had been working with Yvonne Rooney, as well as Catherine and William Rooney-who were limited partners and were also at various times operators of the water system-to ascertain the source of the PCE contamination. Plaintiffs further allege that levels of contamination had fluctuated over that period, but had regularly exceeded safe levels. During that same period, the State sent numerous letters to, or otherwise communicated with, Yvonne, Catherine, and William Rooney informing them that tests continued to show PCE contamination in the water and reminding them that the "Do Not Drink" water advisory should remain in place until the State changed that status. Despite these directives, the tenants allege that, prior to August 1997, defendants neither notified them of the problem nor took any steps to furnish uncontaminated water to the tenants' rental units.
8. After years of investigation, the State, in conjunction with the partnership and the Rooneys, identified the PCE contamination's source as an underground storage tank that was part of the water system operated by the Rooneys. Shortly thereafter, in October 1997, the defective tank was disconnected and replaced.
9. Plaintiffs conducted extensive discovery and reached a settlement with numerous defendants on all counts except the warranty-of-habitability count against the partnership and the Rooneys. These remaining defendants then moved for summary judgment. In considering the motion, the trial court refused to recognize the viability of the tenants' common-law claim, and instead applied the statute with its tenant-notice provision, § 4458(a). Because of its decision to apply the statute, the trial court divided the otherwise similarly-situated plaintiffs into two groups: those who sent the partnership the statutory notice letter before initiating this lawsuit, and those who did not. For purposes of convenience, we will identify the notice group as the "Willards" and the nonnotice group as the "Poulins."
10. The trial court applied the statute to both tenant groups, concluding that the Legislature had preempted the common-law habitability remedy by passing § 4458. Notwithstanding the fact that defendants h
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