Getting Past Thompson v. Harris: A New Standard of Constructive Eviction in Arizona
N/AOUTCOME: Won case appeal
Conclusion The traditional rule of landlord non-liability for tenant nuisances appears to be under fire, particularly where the problem involves a potentially dangerous nuisance and the landlord can f ... ix the problem by invoking its powers under the lease. This is the lesson of Klimkowski. However, Klimkowski should be extended to cover all forms of tenant-created nuisance, including environmental hazards such as air or noise pollution. This extension would be good news for tenants, because it would make the law consistent with their expectation in tenant nuisance cases, i.e., of first calling the landlord instead of their lawyer. As a result, landlords would be held to a higher standard. However, there may be some good news for the landlord here also. Under the traditional rule, the landlord not only had no duty to act, it had no right to act. This limitation of the landlord's rights followed from the centuries-old conception of a lease as a "conveyance" and the tenant as an "owner.''43 Once the landlord's duty is established, there can be no question of its right to police tenants. Waiver clauses, to be effective, should waive defenses as well as claims and bar claims against the landlord, not only for the acts of third parties or other tenants, but for the acts or omissions of the landlord itself.