Property Management - Part 4 - Chapters 82-83

Question 1

Identify the circumstances in which the implied warranty of habitability is breached

Answer 1

A residential landlords failure to maintain the premises in a habitable condition constitutes a breach of the implied warranty of habitability. All residential rental and Lease Agreements are subject to this implied warranty regardless of the provisions in the lease agreement.

COMMERCIAL LEASES DO NOT CONTAIN AN IMPLIED WARRANTY OF HABITABILITY.

Question 2

The actions a tenant may take when the landlord breaches the implied warranty of habitability

Answer 2

The implied warranty of habitability requires the residential landlord to care for the premises by maintaining it in a habitable condition. On noticing a condition that breaches the implied warranty of habitability, the tenant has a duty to notify the landlord and give them a reasonable amount of time to make the repairs before taking other action.

The actions a tenant may take when the landlord breaches the implied warranty of habitability include:

• notify the landlord and give them a reasonable amount of time to make the repairs before taking other action.
• use the “Repair And Deduct Remedy” which states if a residential landlord fails to make necessary repairs, and the cost of the repair is less than 1 months rent, the tenant may order out and pay for the needed repairs. The tenant may then deduct the cost from the rent.

{{note however the repair and deduct remedy is not often feasible in apartment dwelling since the areas where repairs need to be made are in possession and control of the landlord.}}

The residential tenant then resort to OTHER REMEDIES such as:

• vacating the premises, called constructive eviction
• raise the habitability defense
• stop paying rent and prove the landlord breached the implied warranty of habitability in the ensuing unlawful detainer action
• raise and prove the defense of retaliatory eviction in any unlawful detainer action

Question 3

habitability defense

Answer 3

A HABITABILITY DEFENSE is a residential tenants pursuits of a legal remedy do to a landlord’s failure to maintain habitable conditions on the rented premises.

In a unlawful detainer action, a tenant who successfully raises the habitability defense (wins the case) will be allowed to:

• retain possession of the premises
• pay a reduced amount of rent based on the uninhabitable condition of the property
• recover attorney fees and cost of litigation

To remain in possession however, the tenant is to pay the rent amount awarded to the landlord, offset by the tenant attorney fees, Within:

• 5 days of the entry of judgment
• 10 days if the unlawful detainer judgment is served on the tenant by mail

If the tenant fails to pay the rental amount set by the court in a timely manner the landlord is awarded possession of the premises.

Question 4

habitable condition

Answer 4

A HABITABLE CONDITION is the minimum acceptable level of safety, utility and sanitation permitted by law in a residential rental.

Question 5

implied warranty of habitability

Answer 5

IMPLIED WARRANTY OF HABITABILITY is an Unwritten provision, included by Statute, in all residential lease agreements requiring the landlord to provide safe and sanitary conditions in the rental unit. All residential rental and Lease agreements carry an implied warranty of habitability regardless of the provisions in the lease agreements. The implied warranty requires the residential landlord to care for the premises by maintaining it in a habitable condition.

NOTE However - commercial leases do not contain implied warranty of habitability.