Buckner

Plaintiff tenant sued for damages alleged to have been caused by infestation of the premises let by vermin, to-wit psocids, causing a constructive eviction. The only damage awarded was the return of the deposit for the last month’s rental. Defendant landlord appeals.

Warren v. Willett (1940) Civ. A 4824 (unreported decision of this court) has much in common with this case. There the trial court found for the tenant on two possible theories, constructive eviction and fraudulent concealment of a known condition of infestation. This court affirmed. Unless we are to distinguish that ease and limit its holding solely to fraud, it is controlling here. For reasons hereinafter stated, we believe the constructive eviction ground good.

Unless its provisions were validly waived, Civil Code section 1941 required the defendant landlord to put the premises in a condition for occupancy and maintain such condition.

The attempted waiver of this provision found in the usual form in paragraph 4 of the lease was not binding upon the tenant under the facts of this case for two reasons.

First, such waivers are strictly construed. Butt v. Bertola (1952) 110 Cal.App.2d 128 [ 242 P.2d 32 ]. The…