Implied Warranty of Habitability

Question 1

Implied Warranty of Habitability

Answer 1

• Grows out of constructive eviction notion
• Residential lease, tenant cannot always vacate the premises even though covenants (e.g. running water, electricity, etc.) have been broken  thus implied warranty of habitability
• Prior to 1970s
o Require express warranties – had to negotiate (e.g. PAY) for them from LL
o Court wouldn’t imply them because add’l liability was very costly for LL; could further restrict housing supply or drive up prices, pushing tenants out anyway

Question 2

• Javins v. First National Realty Corp – DC (1970)

Answer 2

o Ct. first announces implied warranty of habitability for residential leases; standard is tied to the housing regulations
o Breach allows for usual remedies for breach of contracts
o LL cannot contract around the implied warranty  it cannot be waived
o Adopted for public policy / consumer protection
o Enforcement: relies on complaints from tenants
 Edwards, infra, provides protection from retaliatory eviction
• Courts have been more open to warranty being waivable in the commercial leasing context (b/c tenants have greater bargaining power and greater ability to raise capital to make repairs)

Question 3

• Edwards v. Habib – DC (1968)

Answer 3

o F: Tenant reports 40 violations of building code; LL evicts her (w/ statutory requirement of 30 days notice per her month to month lease)
o H: Ct. finds protection against retaliatory eviction is necessary – private complaints are only way that the code will be reasonably enforced
 Cannot punish tenant for exercising const. right to complain
 Retaliatory eviction is question of fact for jury
o LL can, in absence of legislation or K, evict tenants (terminate lease) or raise rents for economic/legitimate reasons
o Puts burden on the LL – if building is sub-code, it must be raised to code (cannot just evict tenants and abandon the building)
o When tenant contributes to code violation, LL has cause of action for possession

Question 4

• Walls v. Oxford Management Company – NH (1993)

Answer 4

o F: P was assaulted in parking lot of D’s apartment complex
o H: Scope of duty limited by what risks, if any, are reasonably foreseeable. LL has no duty to protect from criminal acts of third parties
 Exceptions (where LL would be liable):
• Special relationship (not met by LL/tenant)
• D landlord creates the situation for harm (e.g. known physical defect like broken locks, window latches)
• Overriding foreseeability (e.g. high crime area)
• Voluntary assumption (standard tort principles – affirmative act creates a duty); if LL contracts for security in the building, could be subj to liability if that security is negligent
o Not all courts agree with this; don’t want to dis-incentivize LLs from providing security by imposing liability
 Implied warranty of habitability does not impose duty to furnish protection against criminal attacks
• Kline – NY ct says LL is in best position to take necessary protective measures of common areas in apt building, because municipal police cannot patrol those common areas
• Courts are mixed on LL liability for acts of other tenants