The Evolution of the Implied Warranty of Habitability

The Evolution of the Implied Warranty of Habitability

Donald E. Campbell

Introduction

Imagine a situation in which a tenant rents an apartment for herself, her three children, and her new-born grandson. On the day she moves in she finds that the prior tenant has left garbage throughout the apartment. The landlord tells the tenant that if she will clean it up, he would return her security deposit. She does, but the landlord never returns the deposit. The apartment itself is in very bad shape. The kitchen window is broken. The landlord never gives the tenant a key to the apartment, and therefore she was required to ensure that a family member was at the apartment when she left. The toilet in the bathroom would flush only by dumping pails of water into it. The bathroom light and wall outlet were inoperable. The ceiling leaked and the in the kitchen and one of the bedrooms which caused large pieces of plaster to fall. During the summer, the smell of raw sewage permeated the apartment – making living difficult if not intolerable.

The tenant facing these challenges goes to a lawyer and wants to know her options – can she stop paying rent? Can she force the landlord to repair the premises? Does she have any claims against the landlord? The answer to the question will depend not just on when in time these events occurred. Depending on when these events happened, thedoctrine of caveat lessee apply to bar the claims or there may be an implied obligation on the landlord to provide residential lease premises in a “habitable” condition.

Caveat Lessee: leaseholds as conveyances

The fact pattern above presents an easy question under traditional property law. The landlord and tenant have entered into a transfer of an interest in land. The tenant received the leasehold interest while the landlord holds the reversion. The lease was viewed as essentially the sale of the property for a term. As with other transfers of real property, once the conveyed the possessory interest to the tenant the landlord’s obligations with regard to the premises were terminated until she received the reversion. So long as the society remained primarily rural and agricultural, such a relationship benefited both the landlord and the tenant. The landlord wanted rent and the tenant wanted undisturbed possession and use of the land. Structures on the property were of secondary importance. Perhaps the most famous statement of the doctrine is from the English case Robbins v. Jones, 143 Eng.Rep. 768, 776 (1863): “There is no law against letting a tumbledown house.” See also P.H. Investment v. Oliver, 778 P.2d 11 (Ct. App. Utah 1989)(refusing to recognize implied warranty of habitability and ordering tenant to pay unpaid rent even though a city official testified that the premises were in such poor condition that the building would be condemned if it were not occupied).

The cases under this doctrine seem rather harsh today. In an Alabama case, a tenant who suffered fire loss because of faulty wiring was denied recovery because: “As between the landlord and tenant, where there is no fraud, false representations or knowing concealment of defects, there is no implied covenant or warranty that the premises are suitable for occupation or for the particular use which the tenant intends to make or that they are in a safe condition to use.” Martin v. Springdale Stores, Inc., 354 So. 2d 1144 (Ala. Ct. Civ. App. 1978). Very few jurisdictions continue to follow the caveat lesseeapproach -- Arkansas does (and today may be alone in continuing with the common law doctrine). See Huber Rental Properties, LLC v. Allen, 2012 WL 5423919 (Ark. App. Ct. 2012)(“Under the common law, Arkansas has recognized the caveat lessee doctrine for over a century. (cite omitted).”).

The adoption of the implied warranty of habitability: Leaseholds as contracts

Based on the changing nature of the economy and societal expectations, a number of jurisdictions began to move away from the doctrine of caveat lessee and began to place an obligation on the landlord to maintain the leased premises in a habitable condition. The critical aspect of these early cases was on “habitability.” The tests adopted indicate that the contemplated obligation was limited to maintenance of what might be termed essential facilities.

To give an example of the nature of the warranty imposed, here is the Vermont Supreme Court’s statement of the obligation in Hilder v. St. Peter, 478 A.2d 202 (Vt. 1984) the case adopting the implied warranty of habitability in that state(and the one which the example in the introduction is based):

[I]n the rental of any residential dwelling unit an implied warranty exists in the lease, …, that the landlord will deliver over and maintain throughout the period of the tenancy, premises that are safe, clean and fit for human habitation. . . . Additionally, the implied warranty of habitability covers all latent and patent defects in the essential facilities of the residential unit. Essential facilities are “facilities vital to the use of the premises for residential purposes . . ..” (cite omitted). This means that a tenant who enters into a lease agreement with knowledge of any defect in the essential facilities cannot be said to have assumed the risk, thereby losing the protection of the warranty. Nor can this implied warranty of habitability be waived by any written provision in the lease or by oral agreement.

Hilder v. St. Peter, 478 A.2d at 159-60 (emphasis added). For the Hildercourt, the failure of the landlord to keep the toilets operational, to fix broken glass, and a leaking roof – was an easy caseunder the warranty of habitability.

Following the lead of courts, legislative action followed. The Uniform Residential Landlord Tenant Act – adopted to varying degrees in most jurisdictions – includes a provision requiring the landlord to “make all repairs and to do or refrain from doing whatever is necessary to assure that the premises are habitable.” Unif. Res. Landlord & Tenant Act § 2.104(a)(3). Once again using habitability as the standard for determining obligations

“ Habitability” through time and Place?

The adoption of the implied warranty of habitability as a matter of common law and the subsequent codification of the concept presents an interesting question – has the concept of what it means to be “habitable” changed over time? In other words, has there been an expansion (or perhaps detraction) of landlord obligations from what were originally called “essential functions” to something else – what might have been termed amenities or conveniences – when the warranty was first adopted. In addition, is there today a disparate definition of “habitability” in different areas of the country? These questionspresent important issues of policy. First, an expansion of the warranty necessarily has implications for the availability of housing – particularly low-income housing. Perhaps this a good development or perhaps not, but it is an important empirical question – particularly as revisions to the Uniform Residential Landlord Tenant Act are being considered. And the question of disparate treatment across the country allows us to look from a sociological (and perhaps political) perspective at these issues.

(a)Habitability Across Time

There has been a change in what it means to satisfy the obligation to provide a habitable condition across time. Courts adopting the implied warranty of habitability in the 1970s viewed the warranty as applying to conditions that would make the property difficult or impossible to reside in – a strict approach to habitability. This is the standard set out above inHilder v. St. Peter. It was also set out in Javins v. First National Realty Corp., 428 F.2d 1071 (D.C. Cir. 1970) where the court held that the implied warranty was breached if a landlord failed to maintain the premises in a condition that was in accordance with housing codes. See also Lemle v. Breeden, 462 P.2d 470 (Haw. 1969); Pines v. Perssion, 111 N.W.2d 409 (Wis. 1961).

This strict or traditional approach is no longer the only way to consider habitability claims. Today, court decisions fall into three categories. The first are thetraditional or strict habitabilityclaims – those which go to the “essential facilities” or directly implicates the health and safety of the tenant. For example, in Landis & Landis Const., LLC v. Nation, 286 P.3d 979 (Wash. Ct. App. 2012) the Washington appellate court held that a continuing infestation of rats could violate the implied warranty of habitability by creating “an actual or potential safety hazard.” See also Hammie v. Reddick, 2012 WL 5200910 (Conn. Super. Ct. 2012)(rat infestation as breach of warranty of habitability); Antoine v. Nicoloro, 972 N.E.2d 1063 (Mass. App. Ct. 2012)(failure to have fire escape or alternate means of escaping building breached warranty of habitability); Pama Management Co. v. Brooks, 2012 WL 6213789 (2012)(unrepaired gas leak resulting in tenant having no heater or hot water, no weather stripping on the windows, no stove, shower floor caving in, leaking toilet, holes in wall allowing in rats and spiders).

The second category of claims relates to conditions that are broader than what would have likely been considered a violation of the implied warranty previously. These conditions, while making it such that the tenant might not want to live on the leased premises, do not impact whether the tenantcould live there. These might best be described as extreme inconvenience habitability issues. For example, In Lee v. Fairfield Properties, LP, 2012 WL 5411818 (C.D. Cal. 2012) the court held that the warranty was violated because an apartment was infested with bedbugs. In Hammie v. Reddick, 2012 WL 5200910 (Conn. Super. Ct. 2012) the court held that the failure of an apartment to have a smoke detector and to cover the light sockets rendered it uninhabitable. Finally, in Upper East Lease Associates, LLC v. Cannon, 924 N.Y.S.2d 312 (N.Y. Dist. Ct. 2011) the New York district court held that second-hand smoke constituted a breach of the implied warranty of habitability.

The third category includes those claims that do not breach the warranty of habitability. In these cases the courts did not recognize a breach of warranty under the circumstances. For example,Wright v. Miller, 963 P.2d 934 (Wash. Ct. App. 1998) held that a handrail that did not run the entire length of the stairs in violation of building code did not state a claim for breach of the implied warranty of habitability because “The only conditions held to violate the warranty of habitability are those which render a dwelling actually unfit to be lived in. The alleged defects here do not impact the livability of the house so as to render it unfit for habitation.” Wright v. Miller, 963 P.2d 934, 940. This category will vary based on how broad the definition of “habitability” is in the jurisdiction.

(b)Habitability across jurisdictions

While the concept of “habitability” may have shifted generally over time, it is an open question as to whether the concept has the same meaning across different jurisdictions. There are a number of ways to categorize jurisdictions to examine the differences across the United States. For example, you could do it geographically by breaking the U.S. into four quadrants and examining a sample of cases from each quadrant. However, I have selected a more nuanced approach based upon the political positions of the states.[1] For example, do extremely red (conservative) states decide cases differently than extremely blue (liberal) states? To define liberal and conservative, I utilized percentage of vote for president since 1972. By taking the percentage each state voted for the Republican and Democratic candidates and then averaging the percentages, you can isolate which states over time could be considered the most conservative and liberal. The chart below provides the top 10 most conservative and liberal states using this metric.[2]

Most Conservative States / Most Liberal States
Utah (65) / Massachusetts (55.16)
Wyoming (61.91) / Rhode Island (55.13)
Idaho (61.85) / Hawaii (53.46)
Nebraska (61.03) / New York (53.42)
Oklahoma (59.99) / Maryland (52.08)
Kansas (57.25) / Illinois (50.36)
North Dakota (56.82) / Minnesota (50.05)
Mississippi (56.78) / Vermont (49.95)
Alabama (56.45) / Delaware (49.41)
Alaska (56.44) / California (49.08)

To give an idea of the differences between these jurisdictions, consider Utah and Massachusetts – the most conservative and liberal states.

Utah first adopted the implied warranty of habitability in 1991 in Wade v. Jobe, 818 P.2d 1006 (Utah 1991). The court held that “the warranty of habitability does not require the landlord to maintain the premises in perfect condition at all times, nor does it preclude minor housing code violations or other defects. Moreover, the landlord will not be liable for defects caused by the tenant.” Id. at 1010. The court described the obligation as that of maintaining “bare living requirements.” Id. A landlord satisfies her obligation by substantially complying with building codes. Wade v. Jobe, 818 P.2d at 1011. In addition, Utah recognizes the right of a landlord and tenant to waive the warranty but will interpret any waiver narrowly and recognize it only as to what is expressly listed in the lease. P.H. Investment v. Oliver, 818 P.2d 1018 (Utah 1991). Utah subsequently adopted a Fit Premises Act, Utah Code Ann. §§ 57-22-1 to -6, and continues to recognize the common law implied warranty of habitability as a remedy in addition to the statute.

To give an example of how Utah courts analyze the issue of habitability, consider the case of Myrah v. Campbell, 163 P.3d 679 (Ct. App. Utah 2007). In that case the tenants complained that the premises was “infested with cockroaches and spiders, a toilet leaked in the downstairs basement, windows and a back door were broken, power outlets lacked cover plates, and a bathroom light hung by its wires.” Id. at 861. The trial court found that these conditions were “one of inconvenience and discomfort” and not a breach of the obligation to provide an habitable premises, and the Utah Supreme Court affirmed the finding.

Massachusetts has adopted a different approach to landlord liability. The Massachusetts courts first recognized the implied warranty of habitability in the 1973 case Boston Housing Authority v. Hemingway, 293 N.E.2d 831 (Mass. 1973). The Hemingway court held that the warranty means “that at the inception of the rental there are no latent (or patent) defects in facilities vital to the use of the premises for residential purposes and that these essential facilities will remain during the entire term in a condition which makes the property livable.” (internal quote omitted).

Recent cases have found a breach of the implied warranty of habitability where water would seep into the living room through a hole in the wall and cause the carpet to become wet and mildewed. North Village at Webster v. Braman, 962 N.E.2d 763 (Mass. Ct. App. 2012). In another recent case the appellate court held that the failure of the landlord to provide locks and the failure to a hole in the kitchen ceiling breached the landlord’s duty. Kelly v. Jones, 954 N.E.2d 35 (Mass. Ct. App. 2011). A final example, in Cortes v. Clinton Housing Authority, 2010 WL 5188457 (Mass. Super. Ct. 2010), the superior court found a breach of the implied warranty where the tenant fell while walking down an icy walkway outside her apartment.

The cases from these two states indicate a potential (and perhaps expected) difference between liberal and conservative states. The conservative state will tend to apply a traditional or strict habitability requirement, while the more liberal state will tend to have a more generous definition of habitability – expanding the definition to include conduct in the extreme inconvenience category.

V. Conclusion: What does it mean?

What does an analysis of the implied warranty of habitability across time and jurisdictions tell us? First, it provides evidence for the idea that the same concepts change in meaning over time. It seems highly unlikely that the courts of the mid-1970s – who were moving in incremental steps away from the doctrine of caveat lessee – saw the doctrine as covering conditions that, while perhaps implicating safety (ex. smoke alarms or carbon dioxide detectors) would not directly affect the livability of the premise. The larger question of whether this shift in the interpretation of the meaning of “habitability” is one that justifies further debate. The second issue, of difference in interpretation of the meaning of “habitability” across different jurisdictions in the United States also raises some interesting issues. First is the unsurprising finding that there are certain defects or conditions that all jurisdictions which recognize the implied warranty will consider a breach – those conditions that go to what the early courts would say are “essential” to habitability. However, there is also a space, where the conservative and liberal state policies diverge. Properties that would be uninhabitablein Massachusetts (to use the example from above) would be acceptable in Utah. These disparate approaches across jurisdictions can be seen as an example of federalism at work. After all, the weather in Massachusetts may require more stringent standards than in Utah. But this disparity can also raise questions about the need for a uniform national standard of habitability.

[1] It should be noted that this approach actually gives a good geographic distribution of states.

[2]This approach almost exactly mirrors the ideology based on public opinion polls. For example, in a February 2012 survey, Gallup found that the ten most conservative and liberal states were: Conservative: Mississippi, Utah, Wyoming, Alabama, Louisiana, Arkansas, Oklahoma, Nebraska, Idaho, and Tennessee. Liberal: Massachusetts, Oregon, Washington, New York, Hawaii, California, New Jersey, Rhode Island, New Hampshire, and Connecticut.