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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX BOBBY FERRIS, CASE NO: SX-14-SM-038 PLAINTIFF, V. JAH-NEISHA WITHEY, DEFENDANT. ORDER THIS MATTER is before the Court on remand from the Superior Court to issue findings of fact and conclusions of law for the March 4, 2014 Judgment. On May 4, 2014, the Court held a summary hearing on Plaintiff's action for unpaid rent. The Court now makes the following findings of fact and conclusions of law. Findings of Fact 1. Plaintiff and Defendant entered into a landlord-tenant relationship by signing a written lease agreement on or about August 5, 2011. 2. The lease agreement required Defendant to pay $550 per month to lease Plaintiff's property located at No. 3-I Estate Catherine's Rest, Apt. 3. 3. The lease agreement was for an initial term of six months, after which time the lease became a month-to-month tenancy. 4. Defendant occupied the leased property from August 2011 to September 2013. 5. The landlord-tenant relationship between Plaintiff and Defendant ended in September 2013. 6. Defendant first notified Plaintiff of roach and rodent infestations within a few months of taking possession of the leased property. Ferris v. Withey SX-14-SM-038 7. After paying for one month of pest extermination, Plaintiff refused to pay for future pest extermination, believing the cost of extermination is Defendant's obligation. 8. Defendant paid Plaintiff $550 in rent each month through October 2012, then $500 in rent for each of the months of November 2012 through June 2013, and $450 in rent for July 2013; Plaintiff did not pay rent for the months of August and September 2013. 9. Defendant failed to pay a total of $1,600 in unpaid rent ($50 for each of the months of November 2012 through June 2013, $100 for the month of July 2013, and $550 for each of the months of August and September 2013). 10.Defendant paid $50 per month for a pest exterminator for the months of January 2012 through July 2013. Conclusions of Law While no statute in the Virgin Islands authorizes abatement of rent, Virgin Islands common law provides for abatement in specific circumstances. One such instance is when the parties’ lease agreement provides for rent abatement,! and another is when a tenant vacates the premises due to acts or omissions so as to constitute constructive eviction.2 In the case sub judice, the lease agreement between Plaintiff and Defendant ' VI Hous. Auth. v. Joseph, 13 V.1. 508, 514 (Terr. Ct. 1977) (noting that “the lease provided that if the defects are hazardous to life, health and safety, and plaintiff failed to make timely repairs or provide other compensatory relief, defendant’s rent would be abated during the entire period of the existence of the defect.”). ? Greenaway v. Johnson, 15 V.1. 195, 210 (Terr. Ct. 1978) (“To be entitled to a suspension or abatement of the rent, the tenant must prove that the partial eviction from some portion of the premises is in character and degree sufficient to prevent the beneficial enjoyment by the tenant of the entire property. ... There is no constructive eviction unless the tenant abandons or vacates the premises as a result of the wrongful acts or omissions of the landlord. If the Ferris v. Withey SX-14-SM-038 does not mention rent abatement as a remedy to pest infestation, and Defendant did not vacate the premises so as to constitute constructive eviction. In 2011, the Supreme Court of the Virgin Islands held that Virgin Islands courts can no longer “mechanically apply” the Restatements of the Law.? Although Virgin Islands law on rent abatement is limited, the Court is empowered to make advances in the common law. However, the Court must first perform a three-factor Banks analysis. The Court must “first [examine] which common law rule Virgin Islands courts have applied in the past;” second, the Court must “[identify] the rule adopted by a majority of courts of other jurisdictions;” and finally, the Court must “[determine] which common law rule is soundest for the Virgin Islands.” Better Bldg. Maint. of the V.I., Inc., S. Ct. Civ. No. 2012- 0092, 2014 WL 1491559, at *7 (V.I. Apr. 15, 2014). Other jurisdictions have permitted rent abatement on the basis of a landlord's breach of an implied warranty of habitability. See Pajic v. Foote Props., LLC, 72 A.3d 140, 148 (D.C. 2013); Crowley v. Frazier, 788 A.2d 263, 267 (N.H. 2001); Mease v. Fox, 200 N.W.2d 791, 797 (Iowa 1972). This rule does not appear to reflect a majority-rule, however. Nevertheless, the third Banks-factor — the most important factor — permits the Court to determine which common law rule is soundest for the Territory. Before the Court can adopt a common law rule permitting rent abatement on the basis of a breach of implied warranty of habitability, the Court must first determine whether or not to adopt tenant continues to occupy the premises from which he alleges he is constructively evicted, he waives his right to claim constructive eviction.”). 3 Banks v. Int'l Rental & Leasing Corp., 55 V.1. 967, 976 (V.L. 2011); see also Gov't of the V.L v. Connor, S. Ct. Civ. No. 2013-0095, 2014 WL 702639, *1 (V.1. Feb. 24, 2014). Ferris v. Withey SX-14-SM-038 the implied warranty of habitability, which has not expressly been adopted by the Virgin Islands Supreme Court or another court of binding appellate jurisdiction.* The implied warranty of habitability is a common law rule adopted by a majority of jurisdictions in the United States. See Pugh v. Holmes, 405 A.2d 897, 901, n.2 (Pa. 1979) (collecting cases); see also Glasoe v. Trinkle, 479 N.E.2d 915, 918 (Ill. 1985) (adopting the implied warranty in Illinois). “This [rule] means that at the inception of the rental there are no latent defects in facilities vital to the use of the premises for residential purposes and that these essential facilities will remain during the entire term in a condition which makes the property livable. Kiine v. Burns, 276 A.2d 248, 252 (N.H. 1971) (adopting the implied warranty of habitability for New Hampshire) (citations omitted). This implied warranty is “imposed by law on the basis of public policy. It arises by operation of law because of the relationship of the parties, the nature of the transaction, and the surrounding circumstances.” Jd. (citation omitted). “In order to constitute a breach of the implied warranty of habitability the defect must be of a nature and kind which will render the premises unsafe, or unsanitary and thus unfit for living therein.” Id. (citation omitted). Because a majority of jurisdictions have been applying the implied warranty of habitability for decades, the second Sanks-factor weighs heavily towards adopting the rule in the Virgin Islands. There exists a strong public policy reason for the Virgin Islands adopting the implied warranty. Residential landlords should not be renting property known to be unlivable, and residential tenants should expect the rental property * Banks points to Third Circuit and Appellate Division of the District Court decisions issued prior to the creation of the Virgin Islands Supreme Court. 55 V.I. at 975-76. Ferris v. Withey SX-14-SM-038 to be in livable condition. These are fundamental expectations in the landlord-tenant relationship, which should apply to all residential tenancies in the Virgin Islands. Accordingly, the Court adopts the implied warranty of habitability in the Virgin Islands. The Court further adopts rent abatement as a remedy for a landlord’s breach of the implied warranty of habitability. Public policy dictates a landlord should not reap the benefit of collecting the total rental price contracted in a residential lease while the residential property is in an unlivable condition. Residential tenants have an expectation that the property is fit for living, as represented by the contracted rental price. In the event the property become unlivable, the value of the property necessarily diminishes, and the contracted rental price should be abated accordingly. However, to avoid undue prejudice to the landlord, fairness requires the tenant give the landlord notice of the conditions which make the residence unlivable, and a reasonable opportunity for the landlord to eliminate the conditions. The Court finds Defendant gave notice to Plaintiff of the roach and rodent infestation, and Plaintiff failed to remedy the condition, resulting in a breach of the implied warranty of habitability. Consistent with this Court’s mandate “to do substantial justice between the parties,”° the Court further finds Defendant is entitled to a rent abatement in the amount of $50 per month from November 2012 through July 2013, for a total abatement of $450. The premises considered, it is hereby > Super. Ct. R. 64. Ferris v. Withey SX-14-SM-038 ORDERED Judgment is entered in favor of Plaintiff and against Defendant in the amount of One Thousand One Hundred Dollars and Fifty Dollars, plus One Hundred Dollars in court costs, for a total of One Thousand Two Hundred and Fifty Dollars; and it is further ORDERED a copy of this Order be personally served on the Plaintiff and the Defendant. DONE and SO ORDERED this Y day of September 2014. re ee aan - - eta ee ok SSICA GA AN Magistrate of the perior Court ATTEST: Estrella H. George Acting Clerk of the Cau f+ < op Spy ow. re. [+f