NO. 91-556 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

BERNICE MATHES, GEORGE LaVOIE, 

PETE SKELSKY, RICHARD SCHWARZ, 

CORA LINN, NORRIS AMUNDSON, 

DORIENNE AMUNDSON, TOM TALARICO, 

SHERYL MANGINELLI, and HAROLD 

MANGINELLI , AUG 9 8 1992 

Plaintiffs and Appellants, A 6 .. :< " -3ir 

-vs- CLERK GF S1JPi?E;2K COURT 

STATE OF liiiiib~ci3,idA 

BILL ADAMS and HAROLD MAGRUDER, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Jack L. Green, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Klaus D. Sitte, Montana Legal Services Association, 

Missoula, Montana 

Norris Amundson, Pro Se, Missoula, Montana 

For Respondents: 

Christopher B. Swartley, Datsopoulos, MacDonald & 

Lind, Missoula, Montana 

Filed: 

Submitted on Briefs: April 15, 1992 

Decided: August 18, 1992 
Justice John Conway Harrison delivered the Opinion of the Court. 

This is an appeal from the Fourth Judicial District Court, in 

and for the County of Missoula, the Honorable Jack L. Green 

presiding. Appellants were all tenants of a Missoula trailer court 

at one time or another. They appeal the decision of the District 

Court which held that the landlords did not breach the warranty of 

habitability. We reverse. 

This action began in 1983 when Bill Adams and Harold Magruder 

(landlords) purchased a Missoula trailer court known as the "River 

#.J.~ ," 

Road Trail Court. Mervin Brandvold (Brandvold) became the on-site 

manager and leased mobile home spaces to numerous individuals, some 

of whom are the appellants (tenants) in this action. Shortly after 

purchasing the trailer court the landlords made promises to reseed 

lawns and pave streets, neither of which was done. They also made 

various rules for the trailer court and its residents which went 

unenforced over the course of several years; the manager actually 

participated in breaking the rules. 

The tenants experienced various maintenance problems the most 

serious to include garbage accumulation due to inadequate 

collection services, septic system overflows and backups, and a 

contaminated water system. The tenants complained regularly, 

resulting in little or no action from the landlords or Brandvold. 

In 1985, the landlords decided to build a townhouse 

development on the trailer court site and submitted proposals to 

that end with the appropriate authorities. To accomplish the 

project, eviction of the trailer court tenants would be necessary. 

2 
As consideration of the townhouse development progressed, the 

tenants continued to be plagued with severe problems with the water 

and sewer systems as well as garbage collection and general 

cleanliness of the common areas of the trailer court. 

At one point a "boil order" was levied due to a contaminated 

water sample test obtained by the Missoula City-County Health 

Department (Health Department). It was not uncommon that raw 

sewage spilled out onto the ground and sewer risers on vacant 

trailer spaces had loose fitting caps or were left uncapped 

completely. Little or no effort was made to clean up the spills 

leaving a detestable odor throughout the trailer court, 

particularly in warm weather. 

Eventually, landlords withdrew the proposed townhouse 

development and the property continued to be utilized as a trailer 

court. Complaining tenants were often met with threats of eviction 

though some persisted anyway. Several tenants testified that they 

did not complain in writing because they believed the eviction 

threats of Brandvold and they did not possess the financial 

resources to move their trailers on short notice. 

Out of desperation the tenants eventually began to complain to 

the Health Department because of the inaction of the landlords and 

Brandvold. Out of concern for their health and safety, the tenants 

formed a tenants' union in August of 1985 and elected a 

spokesperson. On August 13, 1985 the spokesperson/tenant received 

an eviction notice. Also in August, the landlords attempted to 

have the tenants sign a written rental agreement: all refused 
primarily due to a clause in the agreement that stated the premises 

were in a safe and tenantable condition. 

After the Health Department became involved at various points, 

the landlords were instructed to hook into the Missoula County 

sewer system due to the severity of the septic system problems and 

water contamination. To accomplish this endeavor, landlords 

evicted the tenants all of whom were out of the trailer court by 

July 1986. 

This matter came to trial in 1991 on the 9th, 10th and 24th of 

April and the District Court ruled in favor of the landlords, 

stating that they did not breach the warranty of habitability in 

maintaining the trailer court. Tenants appeal and we reverse. 

We address only the following dispositive issue on appeal: 

whether the District Court erred in deciding that the landlords did 

not breach the warranty of habitability. 

We utilize the "clearly erroneous" standard for reviewing 

findings of fact. Steer, Inc. v. Department of Revenue (1990), 245 

Mont. 470, 474, 803 P.2d 601, 603. To determine whether a finding 

is clearly erroneous we have adopted the following three-part test: 

First, the Court will review the record to see if the 

findings are supported by substantial evidence. Second, 

if the findings are supported by substantial evidence we 

will determine if the trial court has misapprehended the 

effect of evidence. [Citing cases. ] Third, if 

substantial evidence exists and the effect of the 

evidence has not been misapprehended, the Court may still 

find that "[A] finding is 'clearly erroneous1 when, 

although there is evidence to support it, a review of the 

record leaves the court with the definite and firm 

conviction that a mistake has been committed." [Citing 

cases. ] 

Interstate Prod. Credit Asstn v. DeSaye (lggl), 250 Mont. 320, 323, 
820 P.2d 1285, 1287. 

Montana enacted "The Montana Residential Landlord and Tenant 

Actf1 (the Act) in 1977. Sections 70-24-101, MCA et seq. The 

purpose of the Act is to: '!(a) simplify, clarify, modernize, and 

revise the law governing the rental of dwelling units and the 

rights and obligations of landlords and tenants; and (b) encourage 

landlords and tenants to maintain and improve the quality of 

housing. l1 Section 70-24-102, MCA, The term Ifdwelling unit1' is 

defined by 5 70-24-103 (3) , MCA, to include person who rents 

space in a mobile home park, Iq making the Act applicable in the case 

at bar. The Act utilizes "good faithg1 or "honesty in fact" as the 

standard in dealings and transactions between the parties. Section 

70-24-103 (4), MCA. 

Also instructive in the case at bar are various Administrative 

Rules of Montana including: 16.10.706-Water Supply, 16.10.707- 

Sewage System, 16.10.710-Solid Waste--Storage and Disposal, 

16.10.754-Operator Requirements. 

It is with guidance from these sources that we address the 

issue of habitability; intimately intertwined with the habitability 

issue is the aspect of "noticet1 to the landlords of the problems 

the tenants experienced. Therefore, for clarity, we first address 

informationally the topic of I1noticel1 in the case at bar before 

proceeding to the dispositive issue of habitability. 

The landlords argue that they were never notified nor were 

they aware of the conditions so that they could repair or replace 

the problem. This argument is not supported by the record. 
Brandvold, as manager of the trailer court, lived in the trailer 

court and, if he did not observe the debris and odors in and about 

the trailer court, he most certainly should have. Since Brandvold 

is the agent of the landlords, they must be charged with having 

notice of the defects and conditions on the premises. 

The landlords continue with this illogical argument in 

reliance on 5 70-24-406, MCA, which provides that the tenant is to 

notify the landlord in writinq of any problems. We believe that 

the legislature adopted the "in writingn portion of the statute to 

deter tenants from claiming that they gave notice to the landlord 

when they had not. The "in writing" requirement is to assure that 

the landlord was given notice and the opportunity to correct the 

problem. The case at bar is not one of these cases. As stated 

previously, Brandvold lived at the facility and witnessed the 

defects and problems first hand; he obviously had actual notice of 

all the aforementioned problems. The Health Department was also 

involved on various occasions relating to the unsanitary sewage and 

water conditions of the trailer court. The testimony of one of the 

owners, Harold Magruder (Magruder) is riddled with the words I1I 

don't recallu when asked for any specificity or detail on almost 

any issue. He was particularly elusive about the notice issue and 

even went so far as to state repeatedly that he was not aware of 

the complaints because they were not in writing due to Brandvoldls 

failure to relate the complaints to him. 

Later, Magruder reluctantly conceded that he was aware of some 

of the problems and that eight of the tenants were complaining. 
Further, Magruder testified that he did get written notice from the 

Health Department about the condition of the trailer court: 

Q. Clean and safe. Was it [the trailer court] clean 

according to the pictures of the refuse piled around all 

of the dumpsters? 

A. Well, if that -- those pictures coincided with the 

date of the rental agreement, no. 

Q. Wasn't the water unsafe in August of 1985? Wasn't 

there a boil order in effect? 

A. If that's what it [the letters from the Missoula 

County Health Department] says, yes. 

Q. And didn't Mr. Xikkert [the County's environmental 

health specialist], several times, say that there were 

serious sanitary problems going on at the trailer court? 

A. Just that one mention in that one here. 

Q. Well, I recall three letters by Mr. Kikkert 

indicating that there were sanitation problems there. 

A. Caps. 

Q. That's not exactly what he said. Didn't he talk 

about serious health hazards? Do you want to look at the 

exhibits again? 

Magruder's testimony is fraught with inconsistencies; after 

claiming that he had no knowledge of the problems he then testified 

that the sewer repair people were out at the trailer court trying 

to fix the problems on a daily basis. Magruder also attempts to 

create yet another escape route stating that he told Brandvold to 

tell the tenants that if they had a serious complaint they should 

bypass Brandvold and speak directly with the owners. 

We find it particularly egregious that the landlords then, 

with knowledge of the many problems, would present for the tenants' 

signatures the lease agreement containing a statement of condition 
which was untrue, let alone emphasize that the tenants refused to 

sign the new lease as some example of their uncooperativeness. The 

clause read as follows: 

8. Condition: Lessee agrees and stipulates that Lessee 

has examined the premises, including the grounds, 

buildings, and improvements, and that they are, at the 

time of this rental agreement, in good order and repair, 

and in a safe, clean and tenantable condition. 

Under these circumstances, we will not allow the landlords to 

escape their responsibility by claiming that they were never 

notified. There was actual notice under § 70-24-108, MCA. 

In directly addressing the habitability issue, we note that a 

major but absent character in this lawsuit is Brandvold. He was 

the on-site manager of the trailer court and, in theory, the 

conduit through which all information traveled between landlords 

and tenants. The record indicates that Brandvold was not 

accountable to :either the tenants :or the landlords in almost 

every action that took place. Brandvold also violated his own rule 

of "no junk vehicles in the trailer courtu by himself repairing, 

dismantling and parking vehicles in various stages of disrepair at 

the trailer court site. A careful review of the record also 

indicates that due to the recurring nature of the problems and the 

fact that Brandvold did little or nothing about the complaints, the 

tenants obviously felt a sense of futility, many of them indicating 

that making a complaint to him was in vain. Further, when tenants 

did complain many of them testified that they were met with threats 

of eviction from Brandvofd. 

While we sympathize with the landlords1 apparent misfortune in 
relying on a manager who only paid "lip servicetg to their 

instructions and directives, they still must be held accountable 

for his actions or inactions. In this light, we note that Magruder 

also testified that he hired Brandvold without knowing his 

employment history or taking an application for employment from 

him. 

Q. Okay. And you hired Mr. Brandvold then as the 

trailer court manager. 

A. Yes. 

Q. What did you know about Mr. Brandvold? 

A. Not a great deal. 

Q. And is that -- has something to do with the fact that 

you can't find him? Did you ever get an employment 

history from him? 

A. No. 

Q. Take an application from him. 

A. No. We just talked to him. 

Citing the fact that the trailer court license was never 

revoked by the Health Department, the landlords characterize the 

conditions that the tenants complained of as lfinconveniences.lv 

However, raw sewage spilling onto the ground next to one's 

dwelling, with its repugnant odors and health concerns, cannot 

appropriately be described as merely an "inc~nvenience~~ nor can 

unsafe drinking water be placed into that category. These issues 

go directly to the habitability of the trailer court and no amount 

of creative verbiage can subvert the conclusion that the trailer 

court was not in a habitable condition. 

With regard to the contamination of the water at the trailer 

9 
court, the environmental health specialist Douglas Kikkert 

(Kikkert), said that he was not sure of the source of 

contamination. Further, trailer court tenant Mrs. Amundson, and 

other tenants, testified that they were never notified by landlords 

that the boil order was lifted and that they could resume normal 

consumption of the water. This fact was corroborated by Magruder 

when he yet again assigned responsibility to Brandvold for not 

informing the tenants that the boil order was lifted. 

Numerous witnesses testified to the unhabitable condition of 

the trailer court. Ms. Cora Linn resided in the trailer court from 

May 1985 to June 1986 and her testimony is particularly 

illustrative. 

Q. What was the condition of the trailer court at the 

time that you first moved into it? 

A. It was a mess 

Q. Could you describe the -- what you mean by the word 

"mess?" 

A. Raw sewage. Toilet paper. Uncapped sewers. Open 

well hole full of water around a child's trailer. Yes, 

it was a mess. 

Q. What kind of problems did you have? 

A. Right by my front door was a hole by a tree, and it 

was raw sewage and fumes that made me sick . . . the hole 

was about a half a foot wide when I moved in. When I 

left it was a foot wide, and it was nasty. 

Q. . . . Now this sewage backing up, could you tell 

where it was coming from? 

A. From down in the ground past the tree trunks. It was 

just there. 
Q. There was no pipe there that you could see. 

A. I couldn't see nothing but a hole. 

Q. Did you mention that particular problem to Mr. 

Brandvold? 

A. Yes. 

Q. And what did he tell you? 

A. Ha, ha, ha. [To] put dirt on it. 

Q. And did you do that? 

A. Yes. 

Q. And what was the result? 

A. The hole got bigger. 

Q. How often would you have to fill that hole with dirt? 

A. Once every month . . . it grew an inch, inch and a 

half, each time you filled it up. 

Q. Okay. How deep was it? 

A. Deep. I could put a stick in it and come up this 

deep with it. I don't know how much that would be. 

Q. You indicated about maybe more than a foot. 

A. More. 

Q. Okay. And to whom did you complain about that sewer 

problem? 

A. To the manager [Brandvold]. 

Q. And his response was what? 

A. Ha. Put dirt in it. It will dry up. 

Q. Were there any other dangerous conditions at the 

trailer court? 

A. Yes, that little dot right in the top up there was 

open. 
Q. You're referring to the main sewer riser. 

A. That's right. And there was a little baby hanging 

over the edge, and I got that baby, took him in his 

trailer. I went down to the manager and I said, "Cover 

this, or X1m going to the police," He said, "Bitch all. 

the way down there. He put a piece of board and a rock, 

and he said, "Don't bother me no more. I don t care who 

dies. l1 

Q. You had complaints, Ms. Linn, about the odor and the 

appearance of the sewage. The sewage disposal system, 

the drains, and toilets in your trailer worked for the 

entire 14 months that you lived there, did they not? 

A.. No. 

Q. Were they stopped at some point? 

A. They backed up a lot. I had -- 

Q. How many times? 

A. I counted six times I had to use snakes to unplug my 

toilet so I could flush it. When I did it came out of 

the ground on the other side of the lot. 

Also, tenant Richard Schwarz testified that "[olne day the 

sewage backed up to the point to where it came up through my 

bathtub lines, all the way underneath my trailer, and came up and 

knocked my bottom pipe down, and it was squirting out of the ground 

behind my trailer.'! The extent of Brandvoldls attempt to correct 

the problem was that he threw lime underneath Schwarzfs trailer. 

A similar rendition was testified to by Dorienne Amundson as 

follows: 

Q. Okay. Were you present in the trailer court when 

Richard Schwarz s neighboring vacant lot bubbled up with 

sewage? 

A. Yes, I was. 

Q. And what steps did Brandvold take to alleviate that 
situation? 

A. He threw lime on it. 

Q. Did he do any cleanup of the place? 

A, None. 

Q. How about all those sewer risers in Exhibits 5, 6, 

and 7? Did he do anything to clean up the garbage that 

was around it? 

A. No. He left it there. 

Mr. Greg Filori also testified to the sewage and uncleanliness 

of the trailer court as follows: 

Q. Did you have any problems with the sewage system 

where you lived in River Road Trailer Court? 

A. Yes. There was open pipe by the trailer. 

Q. There was an open pipe by the trailer, and what did 

that do? 

A. It kind of seeped up through the ground by the tree. 

You can smell it. 

Q. What seeped up? 

A. The sewage. 

Q. Okay. Were the common areas and the grounds around 

your particular residence whexe you lived, were they kept 

in a clean -- clean and safe manner by management? 

A. No. 

Q. Did they keep the weeds and water puddles and what 

not removed? 

A. There was quite a few weeds there. 

Q. . . . were they [the weeds] ever trimmed or cut back? 

A. No. 
Q. Do you know if the common areas of the trailer court 

were ever watered or the grass mowed? 

A. I didn't see [the grass] mowed. 

Garbage services were also problematic when, after constant 

complaints about the inadequate size of the dumpsters, larger ones 

were temporarily installed and Brandvold himself filled them with 

debris from his construction business, which was unrelated to the 

trailer court. 

The landlords also tout that they were never in any violation 

of health codes as administered by the Health Department. However, 

we have reviewed the reports and testings made by the Health 

Department and have discovered the following warning in the reports 

when the results proved to be qlnoncontaminated.gq 

The laboratory examination of this sample showed no 

evidence of contamination. This indicates that, as far 

as can be determined by a laboratory examination, the 

water was safe for drinking at the time the sample was 

taken. However, these results cannot be relied upon as 

indicating the safety of the water at all times unless 

the source is properly located and maintained. 

Any well construction which does not positively exclude 

all surface and subsurface contamination must be 

considered as dangerous to health. All dust, pump 

spillage, surface drainage, bird droppings, scrapings 

from one's shoes, etc. must be prevented from entering 

the well. 

The surface and subsurface contamination of concern and 

reported by the tenants is exactly the type of contamination named 

in the warning. Further, the Health Department's employee Kikkert 

explained more clearly the meaning of water test results in his 

deposition as follows: 

Q. And how about the other one [sample]? 
A. And the next one, a sample taken by . . . Brandvold 

shows contamination with no coliform bacteria. 

Q. What would that mean? 

A. That the particular multiple tube fermentation media 

was able to grow something, but not coliform bacteria. 

The laboratory problem there is that whatever's growing 

may have crowded out what we wanted to test for and the 

coliform bacteria and not allowed it to grow, so it's 

marked as no coliform bacteria, but the simple matter may 

be that another contaminate has crowded it out and not 

allowed it to show up on our test. 

Due to the historical non-attentiveness of Brandvold, the 

tenants chose not to believe news circulated by word of mouth that 

the water was once again safe for consumption, particularly when 

the septic problems had not been alleviated. The tenants logically 

connected the contaminated water with the sewage leakage and based 

their actions regarding whether to drink the water again on their 

own observations. 

With this testimony in mind we examine existing case law. 

First, in Corrigan v. Janney (1981), 192 Mont. 99, 102, 626 P.2d 

838, 839, we indicated that by adopting the Residential Landlord 

and Tenant Act of 1977, there is an implied warranty of 

habitability present in the landlord/tenant relationship. In 

Corricran, the tenants complained to their landlord after moving in 

that when touching various portions of the plumbing system an 

electric shock was received. Mr. and Mrs. Corrigan, as well as 

numerous guests, experienced such shocks and requested that the 

landlord have the electrical system inspected. It was also shown 

that the previous tenant moved out because the landlord refused to 

address the electrical problem. The landlord did nothing 
throughout the Corrigans' tenancy, which lasted a year or more, 

until Mr. Corrigan was killed by an electric shock while bathing. 

While Corriqan is an example of a severe result from a 

landlord's failure to maintain rental property in a habitable 

condition, it bears similarity to the case at bar. There were 

serious and ongoing problems that went unabated despite the 

complaints of the tenants. In the case at bar the record indicates 

that the sewer and water systems were problematic and there were 

other conditions in the trailer court that were unclean and 

dangerous. The fact that no one incurred a fatal accident because 

of the lack of care exhibited by the landlords is irrelevant. The 

instant case and Corriaan are identical in that the tenants 

repeatedly made complaints about the unsafe and uninhabitable 

conditions, all of which were either addressed inadequately or more 

commonly not at all. 

In Busch v. Kammerer (1982), 200 Mont. 130, 649 P.2d 1339, a 

tenant's only source of domestic water came via a garden hose 

stretched from a neighboring house above ground. We indicated that 

such a condition was grounds for a claim against the landlord for 

a violation of the Residential Landlord and Tenant Act, which, as 

stated in Corriaan, encompasses an implied warranty of 

habitability. 

Corriaan and Busch perpetuate the purpose and goals of the 

Residential Landlord and Tenant Act and are helpful by giving us 

examples of violations of the warranty of habitability. 

In the case at bar, the testimony of Magruder is particularly 
revealing with regard to his true expectations of Brandvold in 

maintaining or repairing the trailer court. 

Q. And yet you expected him to handle all of the 

business of the River Road Trailer Court. 

A. Oh, no. 

Q. The majority of it? 

A. Just collecting the rent, and keeping the weeds cut 

down. 

The examples in Corrisan and Busch are similar to the case at 

bar and we conclude that the landlords breached the warranty of 

habitability. 

In reviewing the case at bar we also note the District Court's 

inconsistent treatment of the habitability issue. For instance, in 

the court's findings of fact and conclusions of law that spanned 26 

pages, the court said: 

The Court specifically finds that the River Road Trailer 

Court was not clean nor were the grounds, buildings and 

improvement[s] steadily in good order and repair. 

Also the court found that the landlords failed to engage in cleanup 

activity after tenants vacated the premises, yet the court ruled in 

favor of the landlords and stated that the landlords met their duty 

to maintain the premises, and that they took steps to remedy the 

problems. 

Also, after the court recited the condition of the trailer 

court and the ongoing nature of the problems, it used the 

adjectives "inconvenienced" and "discomfortw to describe what these 

tenants experienced. As mentioned previously the record does not 

support this characterization. 
The tenants in the case at bar contended with ongoing serious 

violations of habitability standards few of which were addressed by 

the landlords in a timely manner, if at all. After reviewing the 

record we are left with the definite and firm conviction that a 

mistake has been committed under the third prong of the three-part 

test we adopted in DeSave, 250 Mont. at 323, 820 P. 2d at 1287, when 

the District Court determined that the landlords did not breach the 

warranty of habitability. We conclude that the landlords failed to 

adequately maintain the trailer court in a habitable manner and 

breached the warranty of habitability. Therefore, we reverse and 

remand to the District Court for further proceedings consistent 

with this opinion. Reversed. 

We concur: