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108 Ga. App. 662

134 S.E.2d 480

Abrams v. Joel

Court of Appeals of Georgia

Decided November 18, 1963

Court of Appeals of Georgia · decided 1963-11-18

Cited by 4 later decisions — most recently November 1977

3 federal appellate · 1 state decisions

Relies on Lewis & Co. v. Chisholm · King v. Smith · Roberson v. Weaver

Good law ✅— No negative treatment on recordhow we know

Decided 1963-11-18

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Hall, Judge.

¶1 1. In Georgia, as in other jurisdictions, when a lessor breaches a duty to make repairs, the lessee may-make the repairs himself and look to the lessor for reimbursement. Lewis & Co. v. Chisholm, 68 Ga. 40, 46; Dougherty v. Taylor & Norton Co., 5 Ga. App. 773, 775 (63 SE 928); Valdes Hotel Co. v. Ferrell, 17 Ga. App. 93, 97 (86 SE- 333); 32 Am. Jur. 589, § 714 et seq. And for such a breach a lessee sued for rent may recoup damages for diminution of the value of the premises caused by the failure to repair. Lewis & Co. v. Chisholm, supra; Roberson v. Weaver, 145 Ga. 626, 634 (89 SE 769); 52 CJS 261, § 487; 375, § 557 (d); 32 Am. Jur. 445, § 539; Anno. 28 ALR 1455; 28 ALR2d 446.

¶2 2. However, when a written lease requires the lessor to keep the roof and outer walls of the building in proper repair, but provides, “No claims for damages shall be made by lessee nor delay in payment of rent for the want of repair in these premises,” the lessee by express agreement waives the remedy last mentioned in Headnote 1. Arnold v. Johnson, 84 Ga. App. 138, 141 (65 SE2d 707); King v. Smith, 47 Ga. App. 360, 364 (2) (170 SE 546).

¶3 3. The trial court did not err, in an action for rent due under the terns of a lease containing the above quoted provision, in sustaining the lessor’s general demurrer to the lessee’s plea claiming reduction of rental due to breach of lessor’s covenant to repair.

¶4 Judgment affirmed.

Bell, P. J., and Pannell, J., concur. *663 Decided November 18, 1963. Joseph J. Gaines, for plaintiff in error. Erwin, Birchmore & Epting, Howell C. Erwin, Jr., contra.
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