Forrest v. P & L Real Estate Investment Co.

EYLER, Judge. This is an appeal by plaintiffs-appellants from a judgment in favor of defendants-appellees after a trial by jury in the Circuit Court for Baltimore City. Appellants sought compensa ³⁷⁷ tion for injuries sustained as a result of exposure to lead-based paint. The complaint was filed on December 30,1997, and the case was tried on September 14 to September 17, 1999.

Appellants’ claims are on behalf of Brittany and LaTisha Forrest, both minors, and appellees are P & L Real Estate, Leslie Poff, Ruth Murphy, and Frank Murphy. Appellants claimed exposure to lead-based paint at premises located at 2507 Madison Avenue owned by P & L Real Estate and Leslie Poff and at premises located at 2501 Madison Avenue owned by the Murphys. The causes of action against P & L Real Estate and Poff were violation of the Consumer Protection Act (“CPA”), Md.Code (1975, 1990 ReplVol.) Title 13 of the Commercial Law Article, and negligence, and the cause of action against the Murphys was negligence. Appellants raise three issues, all of which are related to the conduct of the trial.

Consequently, there is no need for us to elaborate on the procedural history of the parties and the claims. Facts Brittany Forrest, born on April 17, 1990, and LaTisha Forrest, born on July 22, 1991, claim damages for injuries sustained as a result of exposure to lead paint in 1992 and 1993. The minors’ parents are Stacie Brown and Robert Forrest. The parents and Brittany began residing at 2507 Madison Avenue, Apt. 2B, in November, 1990.

The property was owned by P & L Real Estate, a Maryland partnership. Leslie Poff was a general partner in P & L Real Estate and responsible for repair and maintenance of the building at 2507 Madison Avenue. 1 At the time of LaTisha’s birth on July 22, 1991, the family moved to Apt. 3A, a larger apartment in the same building. There was testimony that Mr. Poff and Ernest Young, P & L’s maintenance man, showed Apt. 3A to Mr. ³⁷⁸ Forrest. Mr. Poff and Mr. Forrest both testified that Apt. 3A was rented in “as is” condition.

Mr. Forrest testified that there were areas of peeling and chipping paint at the inception of the lease, specifically around the windows. Stacie Brown’s testimony was consistent with that of Mr. Forrest. The tenants and Mr. Poff agreed that the apartment would be rented “as is” and that Mr. Poff would supply paint to Mr. Forrest to paint the apartment and reduce the monthly rent. Mr. Poff did supply paint and reduced the monthly rent by $15, but Mr. Forrest, who testified that he was not aware that peeling paint was anything other than an esthetic issue, only painted certain walls.

The only complaint during the tenancy with respect to Apt. 3A was a complaint of a hole in the wall, and it was repaired. There was some dispute with respect to the frequency with which Mr. Poff visited Apt. 3A, but there was evidence that he was in the apartment prior to the lease and in the apartment once or twice during the tenancy. Mr. Poff testified that he went through the apartment before it was rented and that is how he knew it needed work, but stated that he did not see any deteriorated paint. In May, 1992, the Baltimore City Department of Housing and Community Development inspected the apartment and noted (1) a defective smoke detector, (2) a defective wall in the living room, and (3) “missing or defective” plaster in the front bedroom.

On February 4, 1993, the property was inspected by the Baltimore City Health Department, which identified 28 surfaces that tested positive for lead, including certain windows, doors, walls, and baseboards. The Health Department provided an abatement plan that provided for removal of loose materials in most of the areas, to “encapsulate or strip and restore” the exterior of middle room windows and front room windows, and to “restore or replace” middle room windows and front room windows, presumably interior. Appellants also claim exposure to lead-based paint at 2501 Madison Avenue. Specifically, Ms. Brown testified that appellants visited their aunt and uncle, Clinton and Heidi Elliott, at ³⁷⁹ 2501 Madison Avenue, Apt. 2- R, three or four times a week from March, 1992, to June, 1993.

The property at 2501 Madison Avenue was owned by Frank and Ruth Murphy. The Elliotts had two children who were close in age to appellants. The Elliotts testified that they complained to the Murphys on multiple occasions with respect to peeling and chipping paint, which was denied by the Murphys. The Department of Housing & Community Development inspected the apartment on May 5, 1992, but did not note deteriorated paint.

The Baltimore City Health Department inspected the apartment on March 23, 1993, and identified 63 surfaces in the apartment and the common areas for abatement. Brittany was first diagnosed with an elevated lead level on April 7, 1992, and LaTisha was first diagnosed with an elevated lead level on December 4,1992. Questions Presented I. Did the trial court err as a matter of law in refusing to admit in evidence the deposition testimony of an unavailable witness?

II

Did the trial court err in instructing the jury that the tenant’s agreement to paint an apartment precludes liability of the landlord under the Maryland Consumer Protection Act in a lead paint poisoning action?

III

Did the trial court err in declining to instruct the jury regarding construetive/alternative methods of notice, and stating that actual notice is required? Discussion I. Prior to the filing of this suit, the Elliotts, on behalf of their children, filed suit seeking compensation for injuries sustained as the result of exposure to lead-based paint at the same two properties involved in the case before us. On March 10, 1997, before the complaint was filed in this case, Mr. Elliott was deposed. The deposition was noted by counsel for the Mur- ³⁸⁰ phys and was attended by counsel for the Elliotts and counsel for the third-party defendant, P & L Real Estate.

Mr. Elliott was deceased at the time of the trial in this case. Appellants attempted to introduce the deposition of Mr. Elliott, but an objection was sustained. Appellants argue that portions of the deposition were relevant, specifically, Mr. Elliott’s testimony that appellants in this case visited the Elliotts in their apartment at 2501 Madison Avenue, his testimony that there was deteriorated paint in the Elliotts’ apartment, and his testimony that notice had been given to the Murphys. Appellants argue that the deposition testimony added “new and more specific facts to the case” and “would have provided the jury with evidence against which to gauge the other testimony in this case.” We note that this issue relates to the liability of the Murphys only, who argue that when the Elliott deposition was taken, the visitation of appellants to the Elliott apartment was not an issue.

Consequently, according to the Murphys, this does not involve the same subject matter under Rule 2-419, and there was no motive to cross-examine Mr. Elliott with respect to that visitation issue under Rule 5-804. Additionally, with respect to the evidence relating to notice of defects, the Murphys argue that it was cumulative because Ms. Elliott testified with respect to the presence of deteriorated paint in their apartment and that notice was given to the Murphys. Therefore, if exclusion of the testimony was error, the Murphys argue it was not prejudicial or reversible error. It is undisputed that the witness was not available because he was deceased.

See Rule 2-419(a)(3)(a). Rule 2-419(c) provides: A deposition lawfully taken in another action may be used like any other deposition if the other action was brought in any court of this state, of any other state, or of the United States, involved the same subject matter, and was brought between the same parties or their representatives or predecessors in interest. ³⁸¹ The Court of Appeals, in Huffington v. State, 304 Md. 559, 569-74 , 500 A.2d 272 (1985), endorsed the substance of Federal Rule of Evidence 5-804(b)(l) as the test for the admissibility of former testimony under the common law exception to the hearsay rule. In Owens-Illinois, Inc. v. Zenobia, 325 Md. 420, 439-41 , 601 A.2d 633 (1992), the Court confirmed that the test for admissibility is whether a party had a motive to develop the testimony about the same matters in the action in which the deposition was taken as the present party would have in the action in which the deposition is being admitted. These actions predated adoption of the Maryland Rules of Evidence, which apply to trials commencing after July 1, 1994.

In U.S. Gypsum Co. v. Mayor & City Council of Baltimore, 336 Md. 145 , 647 A.2d 405 (1994), the Court stated that Rule 5-804(b)(l), 2 applicable to trials commencing after July 1, 1994, mirrors the language of the federal rule and, thus, codifies the motive test adopted in Zenobia 336 Md. at 180 n. 14, 647 A.2d 405 . In the case before us, the deposition was being offered as evidence that appellants visited 2501 Madison Avenue. We agree with the Murphys that this was not an issue in the case in which the deposition was taken and, in fact, was not an issue at all because appellants’ complaint had not been filed at that time. Consequently, it was not error to refuse to admit that portion of the deposition.

We reach a different conclusion with respect to the portion of the deposition relating to defects in the premises at 2501 Madison Avenue and notice of those defects to the ³⁸² Murphys. Those issues were involved in the case in which the deposition was taken, and the Murphys had an opportunity to examine the deponent with respect to those issues. Additionally, contrary to the assertion by the Murphys, the evidence was not merely cumulative. Ms. Elliott did testify with respect to the deteriorated paint in their apartment and that she had given notice to the Murphys.

These matters were disputed, however. Mr. Elliott, in his deposition, stated not just that Ms. Elliott had given notice, but that he also had given notice of a deteriorated condition to the Murphys, both orally and in writing. Exclusion of this evidence was, therefore, an error. Additionally, we are unable to conclude that it was not prejudicial to the claim against the Murphys.

II

As stated previously, one of the issues decided by the jury was whether P & L Real Estate and Poff violated the CPA. As also observed earlier in this opinion, appellant, Brittany, resided at 2507 Madison Avenue in Apt. 2B. Subsequently, with the birth of LaTisha on July 22, 1991, the family moved to Apt. 3A. Although not expressly stated in the briefs, based on the transcript at trial and the arguments on appeal, the issue before us is limited to Apt. 3A.

Appellants excepted to the following jury instruction, which was part of the court’s instructions to the jury with respect to the CPA claim. The court instructed the jury as follows: Now because of certain testimony in this case, with respect to the agreement between the landlord and the tenants, with respect to painting, if you find that the responsibility for any defects in the condition of the paint at the beginning of the tenancy would have shifted as [a] result of this agreement from the landlord to the tenant, then of course then — then the landlord can’t be held responsible if the landlord and tenant had an agreement that the tenant would paint the entire apartment including all areas which, if there are any, that have flaking paint. Including windows, wall- ³⁸³ boards, and all rooms that allegedly, by any testimony, have it. Ms. Brown and Mr. Forrest testified that, at the time of leasing the apartment, they did not know of the hazards of lead poisoning to children.

Mr. Poff testified that, prior to July, 1991, he was generally aware of the hazards of lead-based paint, that he was aware that it should not be used, and that he never used it. Appellants argue that Mr. Poff rented an apartment to tenants who testified that they did not know about the danger of deteriorated paint and who repainted only a portion of the apartment. Appellants argue that P & L Real Estate and Poff had a duty to comply with the housing code and present the apartment to the tenants in a habitable condition, which duty could not be delegated to the tenant. Because of the failure to inform the tenants about the hazardous nature of deteriorated paint in the apartment, if the jury found there was deteriorated paint, there was arguably a material omission under the CPA.

Finally, appellants argue that the tenant was acting as the agent of the landlord with respect to painting the apartment. Appellants conclude that the instruction as given did not permit the jury to consider the agency argument or failure to disclose argument. P & L Real Estate and Poff observe that the court instructed the jury that, if the tenant agreed to paint the entire apartment including areas, if any, with deteriorated paint, the landlord was not liable under the CPA. Further, according to the instruction to the jury, in the absence of such an agreement, if deteriorated paint was present at the inception of the lease, then the jury should find for the tenants.

Consequently, according to P & L Real Estate and Poff, there was no deception under the CPA if the jury found such an agreement, and the instruction was not error. Additionally, with respect to appellants’ agency theory, P & L Real Estate and Poff argue that there was no evidence that Mr. Forrest was the agent of appellees for the purpose of painting the apartment. ³⁸⁴ Because of the nature of the issue, we believe it helpful to set forth in full the court’s instructions to the jury with respect to the CPA. The instructions were as follows: Now, when Mr. Poff and P and L, places an apartment in the stream of commerce for rental, the partnership and he is presumed to be familiar with all the conditions in the apartment. The law says that if I give you an apartment to rent, regardless of whether I know or don’t know, the law says I must know what’s in the apartment and everything— all the conditions that are there.

Whether I’ve examined it or not. In other words, that defendant is charged with the knowledge of everything true of the apartment. Including any negligent condition, if any should exist. The mere existence of flaking or chipping lead-based paint serves as notice of the condition and the landlord does not have to have actual notice of the condition of the property.

Therefore, if at the start of the lease, in this case, chipping and peeling lead-based paint was present at 2507 Madison Avenue, a violation of the Maryland Consumer Protection Act has occurred and you must find for the plaintiff as to that condition. If on the other hand if you find that those conditions were not present, of course, that there was not lead-based paint, and there is a dispute in this case, of flaking and chipping paint, now, keep in mind we’re not talking about whether lead paint exists in the building or exists in the apartment. But whether it [was] chipping or flaking or in some condition like that that would [a]ffect or give the possibility of [a]ffecting somebody. And you find that that wasn’t true at the time that the apartment was leased, then there has been no violation of the Consumer Protection Act.

And the Count — this Count would fail with respect to this defendant. Now do you understand that particular instruction? A JUROR: Yes, sir. THE COURT: Anybody not understand it?

Everybody got it? ³⁸⁵ All right. Now because of certain testimony in this ease, with respect to the agreement between the landlord and the tenants, with respect to painting, if you find that the responsibility for any defects in the condition of the paint at the beginning of the testimony would have shifted as [a] result of this agreement from the landlord to the tenant, then of course then — then the landlord can’t be held responsible if the landlord and tenant had an agreement that the tenant would paint the entire apartment including all areas which, if there are any, that have flaking paint. Including windows, wallboards, and all rooms that allegedly, by any testimony, have it. On the other hand, if you find that this was not such an agreement between the landlord and tenants, or that the agreement [was] uncertain, then you must go back and find out whether you find that there was or was not flaking or chipping paint in the apartment at the time of the rental.

If you do so find, then of course I’m instructing you to find for the plaintiff in this count. If you do not so find, then I would instruct you to find for the defendant. Do you understand that? A JUROR: Yes, Your Honor.

THE COURT: In effect, what I’m saying is, you’ve got to find that the landlord and tenant have — had an agreement that — that the tenant was going to paint the whole apartment and get rid of any, if any, flaking and chipping paint. If there was not such an agreement, that it was some lesser sort of agreement, that did not include all these things that I’ve just said, then of course you must then go to the next set which would be the next set of my instructions to you is, you have to decide whether these things were there at the time the apartment was leased or were not there. Jury understand that? A JUROR: Yes, Your Honor.

We are presented with the task of determining the correctness of the trial court’s instruction to the jury. As stated in Benik v. Hatcher, 358 Md. 507, 519 , 750 A.2d 10 ³⁸⁶ (2000), “the general rule regarding instructions to the jury has two aspects: (1) the instruction must correctly state the law, and. (2) that law must be applicable in light of the evidence before the jury.” (quoting Sergeant Co. v. Pickett, 285 Md. 186, 194 , 401 A.2d 651 (1979)). Thus, “[i]t is well settled that if, when read as a whole, the court’s instructions to the jury clearly set forth the applicable law, there is no reversible error.” Benik, 358 Md. at 520 , 750 A.2d 10 (citing CSX Transp., Inc. v. Continental Ins.

Co., 343 Md. 216, 240 , 680 A.2d 1082 (1996)(citing Nizer v. Phelps, 252 Md. 185, 202-03 , 249 A.2d 112 (1969)); Alston v. Forsythe, 226 Md. 121, 135 , 172 A.2d 474 (1961)). The instruction in this case stated that P & L Real Estate and Poff could not be liable under the CPA if the jury found that appellants and the landlord made an agreement that appellants would be responsible for painting the apartment, including any areas with flaking and chipping paint. In determining whether the above jury instruction was correct, we must examine certain sections of the Baltimore City Code, the CPA, and the relevant case law. See Benik, 358 Md. at 520 , 750 A.2d 10 .

We will begin our analysis with an examination of the CPA. The Maryland General Assembly enacted the CPA in 1973, < finding that the existing laws that offered protection to consumers were “inadequate, poorly coordinated, and not widely known or adequately enforced.” Md.Code (1975, 1990 Repl. Vol.), § 13-102(a) of the Commercial Law Article. The General Assembly stated that the legislation was intended “to set certain minimum statewide standards for the protection of consumers across the State,” id. § 13-102(b)(l), and concluded that the legislature “should take strong protective and preventive steps to investigate unlawful consumer practices, to assist the public in obtaining relief from these practices, and to prevent these practices from occurring in Maryland.” Id. § 13-102(b)(3).

In its application, the CPA is to be construed “liberally to promote its purpose.” § 13-105. The CPA prohibits any person from engaging in “any unfair or deceptive trade practice” in reference to certain specified activities, including the lease or rental, and the offer -for lease ³⁸⁷ or rental, of consumer realty. § 13-303(1) and (2). Section 13-301 of the CPA includes a non-exhaustive list of unfair or deceptive trade practices. Appellants’ claim focuses on section 13-301(9), which provides that “unfair or deceptive trade practices” include any: (9) Deception, fraud, false pretense, false premise, misrepresentation, or knowing concealment, suppression, or omission of any material fact with the intent that a consumer rely on the same in connection with: (i) The promotion or sale of any consumer goods, consumer realty, or consumer service; or (ii) A contract or other agreement for the evaluation, perfection, marketing, brokering or promotion of an invention; or (iii) The subsequent performance of a merchant with respect to an agreement of sale, lease, or rental.[ 3 ] We next turn to an examination of certain relevant provisions of the Baltimore City Code.

The purpose of the Baltimore City Housing Code (“the Code”) is: to establish and maintain basic minimum requirements, standards and conditions essential for the protection of the health, safety, morals and general welfare of the public and of the owners and occupants of dwellings in the City of Baltimore; to establish minimum standards governing the condition, use, operation, occupancy and maintenance of dwellings and other structures, and the utilities, facilities and other physical components, things and conditions to be supplied to dwellings in order to make dwellings safe, ³⁸⁸ sanitary and fit for human habitation; to fix certain responsibilities and duties of owners, operators, agents and occupants of dwellings ... to authorize and establish procedures for the inspection of dwellings, the correction of violations of the provisions of this Code and the condemnation of dwellings, so as to eliminate and to prevent all conditions in and about dwellings which are now or which may in the future become so unsafe, dangerous, unhygienic or insanitary as to constitute a menace to the health and safety of the people ____ Baltimore City Code (1983 Repl.Vol.), Art. 13 § 103. Like the CPA, the provisions of the Code are to be liberally construed to effectuate its stated purposes. Id. All buildings or parts of buildings used as dwellings must “be kept in good repair, in safe condition, and fit for human habitation.” § 702.

Section 703 contains a nonexclusive list of standards which must be met in order for a dwelling to be considered in good repair and safe condition. A requirement of section 703 is that “[a]ll walls, ceilings, woodwork, doors and windows shall be kept clean and free of any flaking, loose or peeling paint and paper.” § 703(2)(c). Section 706 deals specifically with painting and provides, in relevant part: All interior loose or peeling wall covering or paint shall be removed and the exposed paint shall be placed in a smooth and sanitary condition. No paint shall be used for interior painting of any dwelling, dwelling unit, rooming house or rooming unit unless the paint is free from any lead pigment.

Section 310 places the responsibility for compliance with all Code provisions on the shoulders of the owner or operator of a property that is subject to the Code. All buildings, structures, or premises used, designed, intended, or maintained for human habitation are subject to the Code. § 104. Section 310 further states that an owner is to be held hable for any violations of the Code that occur in connection “with any land, buildings, structure, or matter or thing owned or operated by him.... ” Furthermore, an owner is prohibited from leasing or subletting any dwelling unit that is not in compliance with ³⁸⁹ the Code, absent special permission obtained from the Commissioner of Housing and Community Development. § 1001. Finally, § 9-14.1 of the Baltimore City Code of Public Local Laws (1980) mandates that all landlords be deemed to give an implied warranty of fitness for human habitation “[i]n any written or oral lease or agreement for rental of a dwelling intended for human habitation.... ” According to this implied warranty, all landlords warrant that “the premises shall not have any conditions which endanger the life, health and safety of the tenants, including, but not limited to vermin or rodent infestation, lack of sanitation, lack of heat, lack of running water, or lack of electricity.” § 9-14.1(b)(3).

The implied warranty of fitness for human habitation may not be waived. § 9 — 14.1(d). The Court in Brawn v. Dermer, 357 Md. 344 , 744 A.2d 47 (2000), a negligence action, examined most of the above provisions of the Baltimore City Code and concluded: [I]t is clear that it is unlawful to lease a dwelling with flaking, loose or peeling paint and that no premises are to be leased for human habitation, except those that are fit for human habitation, i.e. those that are kept in good repair and safe condition as defined in the Baltimore City Code. To be sure, § 706 prohibits the use of lead-based paint for interior painting in a dwelling unit; however, neither it nor § § 702 or 703 limits the prohibition of flaking, loose or peeling paint to lead-based paint. To be a violation, all that must be shown is that there was flaking, loose or peeling paint, without any further showing as to the content of the paint.

Moreover, none of the provisions of the Housing Code premises violation on the landlord’s knowledge of the hazards of lead-based paint. Id. at 361, 744 A.2d 47 ; see also Benik, 358 Md. at 521-22 , 750 A.2d 10 . The Court in Golt v. Phillips, 308 Md. 1 , 517 A.2d 328 (1986), was faced with the issue of whether leasing an unlicensed dwelling unit constituted an unfair or deceptive act under the CPA. Id. at 4 , 517 A.2d 328 .

In Golt , an elderly, ³⁹⁰ disabled retiree responded to an advertisement by Phillips Brothers and Associates (“Phillips Brothers”) that offered the rental of a furnished apartment. Following an inspection of the apartment and receiving assurances that necessary repair work would be done, Golt signed a month-to-month lease, paid the first month’s rent and a security deposit, and moved into the apartment. Upon learning that the toilet facilities were located outside the apartment and would have to be shared with another tenant and receiving no response to the requests he put in for the needed repair work, Golt called the Baltimore City Department of Housing and Community Development. In addition to finding other housing code violations, the housing inspector discovered that the landlord did not have the requisite license or inspection to operate the building as a multiple dwelling.

The Golt Court concluded that advertising and renting an unlicensed dwelling violated § 13-301(1), (2), and (3). Observing that a provision of the Baltimore City Code prohibited the operation of a multiple family dwelling without a license or temporary certificate, the Court stated that “[i]mplicit in any advertisement and rental of an apartment is the representation that the leasing of the apartment is lawful.” Id. at 9, 517 A.2d 328 . Phillips Brothers did not have a license nor a temporary certificate, and thus were in violation of the Code and could not provide Golt with the unimpeded right to possession during the term of the lease. As such, the advertisement and rental of the apartment by Phillips Brothers was a “misleading ... statement ... or other representation of any kind which has the capacity, tendency, or effect of deceiving or misleading consumers.” Id.

(quoting § 13-301(1)). The Golt Court further held that Phillips Brothers violated § 13-301(2) for making a representation that the “realty ... [has] a sponsorship, approval ... [or] characteristic ... which [it does] not have.” Id. (quoting § 13-301(2)). The Court stated it made no difference that Phillips Brothers did not expressly state that the premises were properly licensed because “such a basic prerequisite to any lease agreement is implied.” Id.

(citing Spiegel, Inc. v. Federal Trade Commis ³⁹¹ sion, 411 F.2d 481, 483 (7th Cir.1969); Aronberg v. Federal Trade Commission, 132 F.2d 165, 167 (7th Cir.1942); In the Matter of Seekonk Freezer Meats, Inc. 82 F.T.C. 1025 , 1054 (1973)). Finally, the Colt Court held that Phillips Brothers were liable under § 13-301(3) of the CPA, which provides that the failure to disclose a material fact which deceives or has the tendency to deceive constitutes an unfair or deceptive trade practice. Id. at 10, 517 A.2d 328 . As stated by the Court: The lack of proper licensing is a material fact that Phillips Brothers failed to state.

In addition, failure to disclose this fact deceived Golt or at least had the tendency to deceive consumers. An omission is considered material if a significant number of unsophisticated consumers would attach importance to the information in determining a choice of action. Id. (citations omitted).

In Benik , the Court was faced with deciding whether proof of scienter is a prerequisite to finding a landlord liable for a violation of the CPA for harm caused by a child’s ingestion of lead-based paint, when the child’s dwelling contained chipping and flaking paint at the inception of the lease, in violation of the Baltimore City Housing Code. 358 Md. at 510-11 , 750 A.2d 10 . The Court held that scienter is not a requirement; the law implies a representation by the landlord as to the condition of the premises at the time of the lease that a reasonable inspection, had it been conducted, would have disclosed. Id. at 533 , 750 A.2d 10 . In examining the implied warranty for human habitation contained in § 9-14.1 of the Baltimore City Code of Public Local Laws, and §§ 702, 703, and 706 of the City Code, which give meaning to the implied warranty, the Court in Benik stated: To prove a violation of the CPA premised on the breach of the implied warranty of habitability, it must be shown that, at the inception of the lease, the landlord made material misstatements or omissions, which either had the tendency ³⁹² to or, in fact, did, mislead the tenant.

Thus, the landlord must have knowledge, constructive or actual, of the condition of the premises at the time of the lease. The implied warranty provisions establish a threshold for the lease of premises and that threshold is based on the purpose of the Baltimore City Housing Code, to “make dwellings safe, sanitary and fit for human habitation,” for the benefit of “the health and safety of the people.”.... [These provisions] are examples of public health and safety regulations. See Golt, 308 Md. at 13 , 517 A.2d at 334 . Id. at 531, 750 A.2d 10 .

While there was evidence in Benik that the landlord did not disclose chipping or flaking paint before leasing the property to the tenant, the landlord argued that he had neither actual knowledge of the chipping or flaking paint nor reason to know of the condition. Id. at 532 , 750 A.2d 10 . In response to this argument, the Court stated as follows: As the owner of the premises and the landlord, on whom the law imposes specific duties and obligations in connection with the lease of the premises, including implying a representation as to the premises’ condition at the time of the lease, the law imputes the requisite knowledge to the peti-tioner____ [T]he landlord need not inspect the premises before leasing, but because of the implied representation that accompanies the making of the lease, he or she fails to do so at his or her peril. This recognizes, as we noted in Richwind, 335 Md. at 685, 645 A.2d at 1159, that “[a]t the time the lease is entered into, a landlord has superior knowledge of the condition of the premises.” Moreover, to hold otherwise would be to encourage landlords not to take seriously the obligations imposed upon them by the City Code; they would be placed in a better position due to their willful ignorance than they would have been in if they had performed their duties.

Id. Id. at 532-34, 750 A.2d 10 (citations omitted). In Benik there was evidence that the tenant never informed the landlord of the existence of chipping or flaking paint in the ³⁹³ premises at the inception of the lease, that the apartment was freshly painted, passed a Section 8 inspection, and was inspected by the tenant before renting it. Id. at 534 , 750 A.2d 10 .

Nevertheless, the Court still held there was evidence from which the jury could have found that the apartment contained chipping and flaking paint at the start of the lease and that it was up to the jury to determine which factual scenario to accept. The presence of flaking and chipping paint in the apartment at the inception of the lease is a basis upon which a jury could find a violation of the CPA because implicit in the rental of an apartment is the representation that the rental is lawful, Golt, 308 Md. at 9 , 517 A.2d at 332 , and that the apartment is in good repair, in safe condition and fit for human habitation, § 9-14.1; an apartment with flaking, loose and peeling paint has not been maintained “in good repair and safe condition” and, therefore, is in violation of the Housing Code; § 1001 makes it illegal to rent a dwelling unit containing Housing Code violations. Id. at 534, 750 A.2d 10 . The specific holding in Benik was that the trial court erred in instructing the jury that the landlord had to be aware of deteriorated lead-based paint on the premises in order to constitute a violation of the CPA.

It does not answer the question before us, whether knowledge on the part of the tenant of deteriorated paint and the tenant’s agreement to repaint prevents liability. After considering the CPA, the Baltimore City Code, and the applicable case law, we agree with appellants that the trial court’s instruction to the jury regarding the CPA issue was reversible error. The jury was instructed that it could not find a violation of the CPA if the jury found that “the landlord and tenant had an agreement that the tenant would paint the entire apartment, including all areas which, if there are any, that have flaking paint.” The tenants in this case testified there was flaking, chipping, or peeling paint in the apartment at the inception of the lease of which they were aware, but argue that they were unaware of the potential ³⁹⁴ hazards of lead poisoning, believing that the defective paint was simply an eyesore. Mr. Poff, on the other hand, claims to have been unaware that any peeling, chipping, or flaking paint existed in the apartment at the inception of the lease but did have knowledge that lead-based paint is a health risk and poses a potential problem in older housing.

With respect to Mr. Poff s claim that he was unaware of the existence of flaking, chipping, or peeling paint at the inception of the lease, the law imputes knowledge of the premises’ condition to landlords due to the implied warranty of human habitability and the duties imposed by the Baltimore City Housing Code. Id. at 582-34 , 750 A.2d 10 . Thus, the issue is whether, if the jury found that deteriorated paint existed, Mr. Poff could be found to have engaged in an unfair or deceptive trade practice by renting an apartment to tenants who knew it contained flaking paint but claim not to have