Copyright 1998 - N.C. Administrative Office of the Courts

CHARLES E. CONLEY and wife, ANNA M. CONLEY, CHARLES W. CONLEY and wife, REGINA M. CONLEY, ROBERT D. CONLEY and wife, PATRICIA A. CONLEY, WILLIAM V. CONLEY and wife, JANET L. CONLEY, KATHERINE M. CONLEY, BRIAN Z. TAYLOR, GUARDIAN AD LITEM for STEPHANIE A. CONLEY, JAMES M. AYERS, II, GUARDIAN AD LITEM for MICHAEL W. CONLEY, Plaintiffs v. EMERALD ISLE REALTY, INC., HENRY B. INGRAM, JR., and wife, LUCY G. INGRAM, KATHERINE J. INGRAM, ANNE M. INGRAM, HENRY B. INGRAM, III, ELIZABETH L. INGRAM, Defendants

No. COA97-1388

(Filed 21 July 1998)

1. Landlord and Tenant -- implied warranty of suitability -- rented beach cottage

Summary judgment was not appropriately granted for the owners of a beach cottage in a negligence action filed by renters injured when the deck collapsed. The forecast of evidence could support a conclusion that defendants leased a furnished vacation home to plaintiffs for a short period of time; that the vacation home was not suitable or habitable for tenant occupancy; and that the defendants breached their warranty of suitability. The North Carolina Residential Rental Agreements Act does not apply to the facts of this case; however, a landlord who leases a furnished residence for a short period impliedly warrants that the furnished premises will be initially suitable for tenant occupancy.

2. Landlord and Tenant -- rental agency -- liability for collapsed deck

Summary judgment for the rental agency of a vacation home was improperly granted in a negligence action arising from a collapsed deck where there was evidence raising a genuine issue of fact as to the extent of the agency's duty to maintain and repair the vacation home. Whether the agent has a duty to maintain and repair the premises is a matter of contract or agreement between the agent and the owner.

3. Landlord and Tenant -- vacation home -- collapsed deck -- liability to family members not on lease

In an action arising from the collapse of a deck at a beach cottage, family members of the tenants staying at the vacation home with permission from the tenants were entitled to the protection of the implied warranty of suitability.

    Appeal by plaintiffs from order filed 19 August 1997 by Judge Judson D. DeRamus, Jr. in Carteret County Superior Court. Heard in the Court of Appeals 20 May 1998.

    Sumrell, Sugg, Carmichael & Ashton, P.A., by Rudolph A. Ashton, III, and Scott C. Hart, for plaintiffs appellants.

    Dunn, Dunn, Stoller & Pittman, LLP, by David A. Stoller and Andrew D. Jones, for defendant appellee Emerald Isle Realty, Inc.

    Mason & Mason, P.A., by L. Patten Mason, for defendants appellees Ingram.

    GREENE, Judge.

    William V. Conley and wife, Janet L. Conley (William and Janet Conley); Michael W. Conley, by his guardian ad litem, James M. Ayers, II; Charles E. Conley and wife, Anna M. Conley; Charles W. Conley and wife, Regina M. Conley; Robert D. Conley and wife, Patricia A. Conley; Katherine M. Conley; and Stephanie A. Conley, by her guardian ad litem, Brian Z. Taylor (the Conley family) (collectively, plaintiffs) appeal from the granting of summary judgment in favor of Emerald Isle Realty, Inc. (Emerald Isle); Henry B. Ingram, Jr. and wife, Lucy G. Ingram; Katherine J. Ingram; Anne M. Ingram; Henry B. Ingram, III; and Elizabeth L. Ingram (the Ingrams) (collectively, defendants).

    Emerald Isle, in the business of selling and leasing beach cottages, contracted with the Ingrams to lease the furnished cottage owned by the Ingrams. On 22 January 1994, William and Janet Conley made reservations with Emerald Isle to stay at the Ingrams' cottage from 24 July 1994 to 7 August 1994. Emerald Isle sent a letter to William and Janet Conley confirming the reservation of the cottage and requesting payment. The letter detailed that the cottage would house up to fifteen people. William and Janet Conley paid Emerald Isle the deposit and balance for rental of the Ingrams' beach cottage. On 30 July 1994, the plaintiffs were standing on the second story sound-side deck of the cottage when it collapsed; the plaintiffs suffered severe bodily injuries as a result.

     The defendants argue that this Court has previously addressed the exact situation presented in this appeal and cite Sawyer v. Shackleford, 8 N.C. App. 631, 175 S.E.2d 305 (1970), as their authority. We disagree. It is true that the Sawyer case involved a claim by a weekend tenant of a beach cottage who allegedly was injured while walking down negligently designed stairs. The trial court concluded that a landlord-tenant relationship existed but dismissed the case due to the tenant's contributory negligence. On appeal, this Court affirmed the dismissal on the ground that the finding of contributory negligence was "adequately supported" by the evidence in the case. It does not appear that the issue of the relationship between the tenant and the owner was before this Court. We therefore do not read Sawyer as binding authority on the issues presented in this case.

Footnote: 2 The ultimate test for determining whether the term of the lease is "short" is whether "the lease is made for a temporary purpose." 5 Thompson on Real Property § 40.23(a)(2)(i). A short term has been described as one for "a few days, or a few weeks or months." Ingalls v. Hobbs, 31 N.E. 286, 286 (Mass. 1892).
Footnote: 3 The Act requires landlords to provide premises that are "fit and habitable." N.C.G.S. § 42-42(a)(2). Although the Act is not applicable in this case, as noted above, the common law requirement that landlords provide premises that are "suitable for occupancy" is tantamount to the requirement that landlords provide premises that are "fit and habitable." See Black's Law Dictionary 711 (6th ed. 1990) (defining "habitable" as a residence that is "suitable for habitation").
Footnote: 4 If the premises were within the coverage of the Act, "any rental management company, rental agency, or any other person having the actual or apparent authority of an agent" would have the same liability as the landlord or owner of the premises. N.C.G.S. § 42-40(3).

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