Implied Warranty of Habitability
Rule
In residential leases, a landlord impliedly warrants that she will deliver and maintain throughout the tenancy premises that are safe, clean, and fit for human habitation. This warranty cannot be waived.
Elements (to trigger the warranty)
- Substantial violation of the housing code — per se breach, or prima facie breach
- Notice to landlord — tenant must give landlord notice of the defect
- Reasonable time to correct — landlord must be given time to remedy the problem
Scope
- Covers all latent and patent defects
- No assumption of risk, no waiver permitted
- Violation of the housing code is compelling but not conclusive
- Conditions sufficient to breach include: broken windows, sewage leaks, clogged toilets, mold — anything that makes the premises uninhabitable
Remedies
- Withhold rent while remaining in possession (without abandonment)
- Repair and deduct — tenant makes repairs and deducts cost from rent
- Consequential damages
- Punitive damages in egregious cases
- Abandonment and rent termination (also see constructive eviction)
Measure of Damages
- Approach 1: Tenant liable only for reasonable rental value in the defective condition
- Approach 2: Difference between (1) value as warranted and (2) value in defective condition — preferred, incentivizes landlord to eliminate substandard housing
Exceptions / Limitations
- Applies to residential leases; commercial leases governed by different (often CL) rules
- CL rule was “as is” — lease viewed as conveyance of soil; modern rule treats lease contractually
- Retaliatory eviction statutes protect tenants who report violations to authorities
Policy
- Recognizes modern residential lease as a contract, not a mere land conveyance
- Tenant cannot inspect latent defects; landlord has superior knowledge
- Redistributes cost of maintaining habitable housing to landlord (cheapest cost avoider)
- Prevents exploitation of low-income tenants with no bargaining power
Key Cases
- Hilder v. St. Peter — raw sewage pipe, broken windows, clogged toilet; breach of IWH even though tenant made repairs herself; cannot be waived; consequential damages allowed