Urban Law Annual ; Journal of Urban and Contemporary Law Volume 16 January 1979 The ewN Implied and Statutory Warranties of Habitability in Residential Leases: From Contract to Status Roger A. Cunningham Follow this and additional works at: https://openscholarship.wustl.edu/law_urbanlaw Part of the Law Commons Recommended Citation Roger A. Cunningham, The New Implied and Statutory Warranties of Habitability in Residential Leases: From Contract to Status, 16 Urb. L. Ann. 003 (1979) Available at: https://openscholarship.wustl.edu/law_urbanlaw/vol16/iss1/3 This Article is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Urban Law Annual ; Journal of Urban and Contemporary Law by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. The New Implied and Statutory Warranties of Habitability in Residential Leases: From Contract to Status Roger A. Cunningham* I. An Overview: Legislative and JudicialAction to Give Tenants a Legal Right to Habitable Dwellings ........... 5 II. Tenant Rights Legislation: The Housing Code Approach 10 A. From the 19th Century Tenement House Law to the Modern Housing Code ............................. 10 B. The Failureof TraditionalModes of Housing Code Enforcement ....................................... 15 1. Order to Vacate and Demolish .................. 16 2. Criminal Prosecution ........................... 17 3. Civil Penalty ................................... 19 4. Mandatory Injunction .......................... 19 5. Direct Agency Action to Effect Repairs .......... 20 6. Receivershp .................................... 21 C. The New Legislative Approach: Tenant-Initiated "Private"Remedies ................................ 23 1. An HistoricalOverview ......................... 23 2. The New York Statutes......................... 26 a. Section 302-a .............................. 27 b. Article 7A .................................. 29 c. Section 756 ................................ 32 * Professor of Law, University of Michigan. S.B., Harvard University, 1942; J.D., Harvard University, 1948. Washington University Open Scholarship URBAN LAW ANNUAL [Vol, 16.3 d. The Spiegel law ............................ 33 3. The MassachusettsStatutes ..................... 35 4. The Pennsylvania Statute ....................... 43 5. The Connecticut Statutes ....................... 46 6. Other Statutes ................................. 48 III. Tenants' Rights Legislation. The Warranty of Habitability Approach ............................................... 51 A. The 19th Century Legislation ....................... 51 1. The Louisiana Statute .......................... 51 2. The Georgia Statute ............................ 54 3. The CaliforniaStatute and its Descendants ...... 56 B. Recent Legislation Creatinga Warranty of Habitability........................................ 59 I. Simple Warranty of Habitability Statutes ........ 59 2. The Warranty of Habitabiliy as Part of a Comprehensive New Landlord-Tenant Code ..... 65 IV. Expansion of Tenants' Rights by JudicialDecision ....... 74 A. HistoricalIntroduction ............................. 74 1. The "Implied" Warranty of HabilityApproach .. 74 2. The "Illegal Contract"Approach ............... 80 B. Scope of the New "Implied" Warranty of Habitability ..... ....... ...... ............. .... ............ 81 1. What Rental Housing is Covered?............... 81 2. To What Extent is "Habitability"D§fned by the Applicable Housing Code? ...................... 83 3. "Latent" and "Patent" Defects and the Duty to Maintain "Habitabity". ....................... 86 4. Can the Protection of the Implied Warranty be Waived? ....................................... 95 C. Tenants' Remediesfor Landlord's Breach of Duty... 98 1. Termination of Tenancy ........................ 98 2. Restitution of Amounts Paidby Tenant .......... 100 3. Damagesfor Breach ........................... 102 4. Equitable Relief Against Breach ................. 109 5. Se/f-help: Repair-and-Deduct................... 111 6. Rent Withholding and Rent Abatement .......... 113 V. Protection of Tenants Against Retaliatory LandlordAction ........................................................ 126 A. Recent Legislation.................................. 127 1. Yhe Uniform ResidentialLandlord and Tenant A ct ............................................ 127 https://openscholarship.wustl.edu/law_urbanlaw/vol16/iss1/3 1979] WARRANTY OF HABITABILITY 2. The Model Residential Landlord-Tenant Code... 129 3. Other Legislation ............................... 131 B. Recent JudicialDecisions ........................... 135 VI. Conclusion: The Consequences of Recognizing the Residential Tenant's Right to a Habitable Dwelling ...... 138 A. Theories as to the Economic Consequences .......... 138 B. EmpiricalStudies ................................... 144 C. Epilogue ........................................... 153 I. AN OVERVIEW: LEGISLATIVE AND JUDICIAL ACTION TO GIVE TENANTS A LEGAL RIGHT TO HABITABLE DWELLINGS As recently as 1965, Burby's well-known hornbook on Real Prop- erty stated as black-letter law that "[i]n general, the lessor does not impliedly warrant that the leased land is suitable for a specific pur- pose," subject to well-recognized exceptions for leases of space in buildings under construction and for short-term leases of furnished dwellings,' and "[in the absence of a statute, and in the absence of a controlling covenant, a lessor is not under a duty to maintain leased land in a state of repair."2 In 1977, however, the American Law In- stitute in the Landlord and Tenant Section of its Restatement (Sec- ond) of Property in substance took the position that, "[e]xcept to the extent the parties to a lease validly agree otherwise," every residential lease contains an implied warranty and covenant by the lessor that "the leased property ... is suitable for residential use (both on the date the lease is made and during the period, if any, between that date and the date the tenant is entitled to possession)," 3 and the lessor will "keep the leased property in a condition that meets the require- ments of governing health, safety, and housing codes [and] keep safe and in repair the areas remaining under his control that are main- tained for the use and benefit of his tenants."4 Although the new Restatement's black-letter rules5 do not state 1. W. BURBY, REAL PROPERTY § 63 (3d ed. 1965). 2. Id.§64. 3. RESTATEMENT (SECOND) OF PROPERTY § 5.1 (1977). 4. Id. § 5.5. 5. The Restatement sections cited supra are contained in Chapter 5, entitled "Con- dition of Leased Property Prevents Contemplated Use." The section headings are as follows: § 5.1 Condition Unsuitable on Date the Lease is Made-Remedies Before Entry; § 5.2 Unsuitable Condition Arises After Date of Lease-Remedies Before En- try; § 5.3 Effect of Entry by Tenant on Remedies Then Available; § 5.4 Unsuitable Condition Arises After Entry-Remedies Available; § 5.5 Obligation of Landlord to Washington University Open Scholarship URBAN LAW ANNUAL [Vol 16 3 with complete accuracy the case law in a majority of American juris- dictions, they at least approximate what is by now a "majority rule." As the introductory Note to chapter five of the Landlord and Tenant Section of the Restatement observes, In recent years, the definite judicial trend has been in the di- rection of increasing the responsibility of the landlord, in the ab- sence of a valid contrary agreement, to provide the tenant with [residential] property in a condition suitable for the use contem- plated by the parties. This judicial trend has been supported by the statutes that deal with this problem. This judicial and statu- tory trend reflects a view that no one should be allowed or forced to live in unsafe and unhealthy housing.6 The new principle that the landlord must provide the residential ten- ant with a habitable dwelling is now established in at least thirty-one jurisdictions. In a majority of these jurisdictions, the principle re- sulted entirely from legislative action. In some of the others it arose from judicial action, and in the rest its origin was both legislative and judicial. Although neither the legislative nor the judicial approach has been uniform, the net result can accurately be characterized as a "revolution" in American landlord-tenant law. The tenants' rights legislation of the 1960s and 1970s generally fall into three types: 1) Statutes that, without expressly creating any new rights, build on existing housing codes by detailing new tenant-initiated private remedies for the landlord's failure to provide a habitable dwelling.7 2) Statutes that expressly impose a new duty on landlords to pro- vide tenants with a habitable dwelling, usually stated in terms of a Keep Leased Property in Repair, § 5.6 Parties Agree Otherwise as to Landlord's Obli- gations in Regard to Condition of Leased Property. Chapter 5 is broader in coverage than the subject matter of this Article, for it states rules applicable to non-residential as well as residential tenancies. Chapters 10 and 11 deal with tenant remedies in detail. 6. RESTATEMENT (SECOND) OF PROPERTY § 5, Introduction at 150 (1977). 7. CONN. GEN. STAT. §§ 7-148(f), 19-347k to 347v, 19-371 & 19-400 (1977); 1968 Md. Laws ch. 459; MAss. ANN. LAWS ch. 111, §§ 127C-127N & ch. 239, § 8A (Michie/Law. Co-op 1975 & Supp. 1978); MicH. COMp. LAWS § 125.530 (MICH. STAT. ANN. § 5.2891(10) (Callaghan 1976));