STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

July 23, 1971

W. H. Walker
State Fire Marshal
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 71-27

Application of Fire Marshal's regulations to building rented by state agency

Dear Mr. Walker:

You have requested an opinion in answer to these questions:

Does a state agency renting premises from a private owner have the right to discontinue paying rent until the landlord complies with orders from the Fire Marshal's Department in regards to means of egress, exit lighting and providing of fire doors, also orders from the Electrical Board in regard to correcting hazardous wiring conditions?

Do all state institutions have to comply with State Fire Marshal Laws?

SDCL 43-32-8 provides:

Building intended for human occupation-Obligations of lessor and lessee. -The lessor of a building intended for the occupation of human beings must, in the absence of an agreement to the contrary, put it into a condition fit for such occupation, and repair all subsequent delapidations thereof except that the lessee must repair all deteriorations or injuries thereto occasioned by his ordinary negligence.

This statute, in accordance with authority, was interpreted in Prior v. Sanbom County (1899) 12 SD 86, 80 NW 169 to state that when the premises become untenantable by reason of the failure of the landlord to do what is lawfully required of him, the effect is eviction which permits the tenant to abandon the premises.

This statute is also consistent with the rule announced in Strupp v. Canniff (1961) 276 Minn. 558, 150 NW 2d 574 where the court pointed out that when a "constructive eviction" occurs because of a failure of the landlord to keep the premises in a tenantable condition, the tenant cannot retain possession of the premises and at the same time refuse to pay rent. When such premises become untenantable, the lessee is put to his election whether to retain possession under his lease, or surrender the premises to the lessor. Such election must be made in a reasonable time, and when such is made it is final and irrevocable.

SDCL 43-32-9 is not inconsistent to the above stated rules, for it states that when after notice to the lessor (landlord) of dilapidations which the landlord ought to repair, such landlord neglects to make such repairs, the tenant make such repairs and deduct the expenses thereof from the rent, or vacate the premises, in which case" he is discharged from further payment of rent or performance of other conditions.

Therefore, in view of our statutes and the law, it is my opinion that in case the Fire Marshal, or his agents, or any other state regulatory agency such as the Electrical Board, the Health Department, etc., find certain inadequacies in premises, this should amount to a "constructive eviction" of the tenant, who has a choice of remedies available. First, he may stay in occupancy of the premises and continue to pay rent. Secondly, he may promptly vacate the premises, and his liability for rent would cease. You can appreciate that each factual situation would have to be judged by a court of competent jurisdiction upon its individual merits, for the court to determine whether or not there was a "constructive eviction" authorizing the tenant to vacate the premises and cease paying rent.

Question 2. Unless there are overriding statutes to the contrary, it is my opinion that the Fire Marshal laws apply to state institutions, so long as such statutes, or regulations promulgated thereunder, are enacted for the purpose of fire protection, and public safety. If such rules and regulations or statutes are in the field of "zoning" or "building codes," such as heights of buildings, set-back from lot lines or the like, the prevailing law is that such regulations do not apply to the state, unless the state or its institutions are specifically made subject thereto.

Respectfully submitted,

Gordon Mydland
Attorney General