LANDLORD-TENANT LAvl REFORM-- I MPLI ED
WARRANTY OF HABITABILITY: EFFECTS AND
EFFECTI VENESS OF REMEDIES FOR ITS BREACH
VIRGINIA
E.
COCHRAN
Landlord-Tenant Law Reform-Implied Warranty of
Habitability: Effects and Effectiveness of Remedies for
Its Breach
I.
INTRODUCTION
Recent case law, in some jurisdictions built around a statutory
housing code, has established a definite trend of implying a warranty
of habitability in leases of residential property. The scope or extent of
this new warra nty is unclear. This vagueness results from the courts'
fears that if they initially adopt too broad a doctrine of implied warranty, they will later be forced to retreat. The courts' understandable
unfamiliarity with this new warranty has discouraged attempts to define
the rights and duties of landlords or tenants upon discovery of a breach
of the warranty. The purpose of this article is to explore the scope of
the implied warranty of habitability and the rights and duties of landlords and tenants. This study should aid the more cautious courts in
reaching their deCisions on the merits of implying a warranty of habitability in leases of residential property.
In recent years, Americans have moved from rural to urban areas
in large numbers. The expansion of most urban centers has engu lfed
adjacent rural areas .' Americans have also become more mobile, and
urban families in growing numbers are becoming renters and apartment
dwellers. The great influx of people into urban areas and the mobility
of urban dwellers have created housing shortages of increasing magnitude' In 1970, over 34% of the housing units in the United States were
renter-occupied.' Moreover, from 1965 to the first quarter of 1970,
rental vacancy rates in all urban areas fell from 7.4 percent to 4.9
percent' This low vacancy rate renders it difficult for most families to
find adequate housing within reasonable price ranges; for the lowincome or the fixed-income tenant, the difficulties of obtaining decent
shelter approach impossibility.'
I.
See Message of the President of the United States Relative 10 the Problems and Future
of The Central City and itll Suburbs. 11 t CONO. Rec. 3908 (1965), cited In J. Gribetz & F. Grad.
Hml.ting Code Enforcement: Sanrtlon.r and Remedies. 66 COlUM, l . Rev. 1254 , n.3 ( 1966).
2. Id.
3 . 1970 CENSUS OF HOUSING, AOVANce RepORT HeV 11 ~ cited In J. Clough. The Cast
Agalml the Doctrine of lndepf'ndent Covenant.r: Reform o/Orego"'$ FED Proudur(', 52 ORE. L.
REV. 39, 40 n.4 (1972).
4.
.
U.S . BUREAU OF THE CENSUS, DEP'T OF COMMERCE, STATISTICAL ABSTRACT OF THE
UNITED STATES . tubTe 1081, Ilt 681 (9ht ed. (970).
5. J. Clough, Tht CO.ft Agoln.'t tht Doc,rlnt o/Indrptndtnt Cownants: Rt/ornr 0/Ortlon'3
749
TEXAS TECH LAW REVIEW
750
[Vol. 5:749
Despite almost universal recognition or the rundamental human desire
and need for adequate housing, the quest for safe and sanitary dwell. ing. by low and moderate income members of our society poses one
of the most complex challenges to America. Although this nation has
made tremendous technological advances in the past 50 years and has
expended enormous sums of money on'housing, the problem of finding
more than the bare minimum of shelter for a large segment of our
society grows worse.·
A vivid example of this problem is in New York City. During the
1960's, while the city's inventory of sound housing grew by an estimated
2.4 percent, the inventory of dilapidated housing grew by 44 percent,
and the inventory of deteriorating housing grew by 37 percen!.' By 1970,
"the city had 500,000 substandard d,welling units which constituted nearly
one-Il rth of the city's total in-use rental housing stock.' Landlords have
abandoned from 20 to 30 thousand occupied dwelling units since 1965.'
Despite the increase in the number of dwelling units becoming substandard, the average rent in New York City rose 57 percent faster than rents
in the rest of the nation during the past decade." Thus, renters in New
York City have been forced to pay more of their incomes for increasingly poorer housing ." Other metropolitan areas have similar problems,
although not as acute."
II. '
THE CONFLICTING INTERESTS OF LANDLORDS AND TENANTS
One of the basic elements contributing to the urban housing prob.Iem is the difference in goals of landlords and their tenants.
The housing problem involves a triangular relationship between the
tenant, the landlord, and the government. The tenant is interested in a
decent place to live at a reasonable price; the landlord is interested in
turning a profit with a minimum outlay of money and a maximum
FED Proctdurt. 52 ORE. l. REV. 39,40 (1972) lhereinaficr cited as Clough).
6. p , Sal~ich, Hou.dng and
Stalt,'_ 2 THE URBAN LAWYU 40 (1910) [hereinaner cited
tI~ Sulsich).
7. Stt authorities cited in Comment. ArtlC'll 7-A Rtlllslttd: New York CItY'I Slalulor, Rent
,It,
S,rlk, Lo ... 8 COLUM. J.L. '" Soc. P.o •. 521 nn.4-8 (1972).
8. Id. at 524 n.9.
9. Id. n.IO.
10. Id . • 1 524-25 nn .12, 11.
II. Id. ul 525 n.14. For a picture of the housing market in Washington, D.C., Ut Daniels,
JllcllC'lal and Ltg/.flatlvr Rtmtdlt.f lor Substandard Houllng: Landlord· T~na"' Law Reform In th~
Dl.ftrlct nfCn/limb/a, 59 Geo. L.J. 909, 909·10 (1911). A similar picture il painted or st. louis.
Mi'~~ourl in Sulsich • .'"pra note 6, at 40·42. Set al30 Id. at 41 n.S.
, 12. Sec Id.
.
1914)
WARRANTY OF HABITABILITY
751
protection of his investment; and the government is interested in balancing these, interests for the public welfare and for upgrading the
community standard of living."
The tenant has two basic interests. The first is his reasonable expectation that the premises are in habitable condition when he moves in. It
is reasonable for the tenant to believe that he will get what he thinks he
is paying for. The tenant who moves into his apartment during the
summer, for example, believes that the package includes adequate heating. This expectation may prove to be ill-founded and unfulfilled if the
tenant finds himself freezing in the apartment come winter." A tenant
may also reasonably expect his newly-rented apartment to be free from
vermin or structural defects. This expectation, too, may prove illfounded after the tenant's first night in his new home. It is also reasonable for a tenant in these circumstances to expect the landlord to cure
the defect in the apartment.
I n addition to this expectation interest, a tenant has a more basic
interest, that is, to merely be able to obtain a decent home for the money
he has to spend. Consider, for example, the plight of a tenant who moves
into a freezing apartment in mid-winter perfectly aware of the defect in
the heating system . The tenant may hope the landlord will repair the
heating, but this hope is not a reasonable expectation because the tenant
cannot reasonably expect to pay the same price for a warm apartment
as he does for a cold one. If this tenant is to receive any type of relief it
would be on the ground that he has a right to live in a decent home."
The landlord's basic interest, however, is in making a profit. Either
of the tenant's interests, therefore, may be vindicated readily by his
landlord if there is a corresponding increase in rent. Whether he is a
moneyed, corporate landlord or one who has few properties from which
he derives his only income, if he is to maintain profits, the landlord
cannot make costly improvements without significant increases in rental
income, however good his social conscience." Thus, although slum
property has been termed a "smart" investment for those with nerve and
capital to invest, it is probable that for every grasping slumlord there
are slum property owners in great number who have become locked into
13. Clough. ,f upra note S. at 39.
14 . S~~ Ackermun, R~gu'Qtlng Slum Hou.rin, Marktu on 8ddl! o/'''t Poor: Of Hous/n,
Codt.f. Hou.flng Sub.fld/t., and {ncom', Rtdt.rtrlbutlon Policy, 80 YALB LJ. 1093, 1095 (1971).
15. (d.
16. J. LEYI, liT. At., MODEL RESIDENTIAL LANDLORD·TENANT CODE, GtntfYIllntroducllon
019 (1969) [hereinaner ciled as MODeL CODE).
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TEXAS TECH LA W REVIEW
[Vol. 5:749
an unprofitable position without their control and who are unable to
improve the property in the existing market."
III.
THE COMMON LAW RESOLUTION OF CONFLICTING INTERESTS
Much has been written about the common law's heavy-handed
dealing with leases and tenants ." The common law lease was regarded
as a conveyance of an estate for years, and the tenant took the property
subject to the doctrine of caveat emptor." Unless otherwise agreed, the
lessor was under no obligation to repair defects occurring during the
term of the lease; the duty of repair fell on the tenant." These common
law concepts obviously did nothing to resolve the conflicting interests
between landlords and their tenants because they generally favored the
landlord and offered little protection to the tenants. The landlord could
choose tenants economically on irrational grounds, and he could discriminate in favor of tenants who gave him the least trouble; i.e., those
who did not bother him about repairing his property or reducing the
rent." Once the landlord delivered possession of the property his duty
was carried out, and all he need do was collect the rent.
IV.
DEVELOPMENT OF HOUSING CODES
Because the common law failed to develop a clear set of enforceable
service obligations between the landlord and his tenant, legislatures
imposed civic obligations on the landlord which he owed to the community at large. These obligations were enumerated in building and .
health codes."
Legislative reform began at the turn of the century with New York
City's Tenement Housing Act" and with the housing codes of some of
the other large eastern cities." The aim of the early legislation was
17. Id. • 1 8.
,
18 . Su, t'.g., Commc'nt . TIr~ Impll,d Warranty 0/ HabltabilltY I/" l.andlord- T,non' R,la'IImnhip.,: Th f" N('ct.ully of Ap"lIrarlon In T t X4f, S ST. M,,~y's L.J. 64 (1913); Note, LandlordTt'nant: A L('QU (If Rf'.fldf'nllal PrOptTly Contain., an 'mplitd Warranty of Habitability and
Fltnf'U. 4 TEX . TEe n L. REV. 433 (1973). Sf" OI.fO , t .g ., cases cited notcs JJ-S2 Infra .
19. Note. Londlord-T,nanl; A Ltau of Rt.d dtnt/al Proptrty Conta/lf3 an Implltd Warranly
(If Hahltahillty and Fllnl'u. 4.T EX, TECH l. RE\' , 433, 433-34 (1973) .
20. rd.
21. MODEL COOl! • .f"prO notc 16. at 9,
22 . Quinn at Phillips, Th~ Law of Land/~d. T~nant: A C,ltIcal Evaluation of 'he PMt wl,h
G'lidfOlinfO.' for ,hfO FuIU'~. 38 FORDHAM L. REV. 225. 239 (1969) (hereinaner cited as Quinn at
Phillip,).
.
23. N .Y . Se~!I . Laws 1901 . ch. 334:
24, Gribett at Grad. Hou.dng Codt En/orrtmtnt: Sanctions and RemtdltJ. 66 COLUM. L.
REV. 12S4. 1259·60 (1966) IhereinaRer ciled a. Gribell '" Grad).
1974)
WARRANTY OF HABITABILITY
753
simply sanitation. The enforcement ianction most often used was an
order to the tenant to vacate the premises. The early legislation was
enforced leniently. if at all. and was therefore generally ineffective."
Following World War I. however. a serious housing shortage occurred.
and the vacate order became counterproductive. This led to replacement
of the vacate order with criminal prosecution as the principal enforcement sanction. Today. criminal sanctions are the only means of housing
code enforcement in many jurisdictions.
Criminal sanctions designed to coerce landlords into the maintenance of decent building and health standards have an ancient tradition.
In the context of modern urban society. however. they are largely ineffective" for two reasons. First. a criminal sanction which is concerned
with the culpability of the defendant rather than the condition of the
building is simply inappropriate to solve the problem." Second. the
criminal sanctions imposed by most housing codes are not sufficiently
severe. For example. in New York City in 1963 only 36 of the 14.786
landlords convicted for housing violations were imprisoned. and in the
District of Columbia through 1965. no landlord had ever been sent to
jail for a housing code violation." Neither has a system of fines added
to the effectiveness of criminal sanctions. In most states the fines levied
on convicted landlords have been so small that they evidence a system
of licensing rather than an effective deterrent."
Recognizing that a more effective means of housing code enforcement is needed. authorities in several jurisdictions have enacted new
laws which seek to control the landlord's abuse of his service obligation
by altering the tenant's rental obligation." An example of the most
25 . /d. at 1260·61. The order to vacate has no rea sible application currently because of
lodaY'!i "5cller'5 market" in housing . See notes ' · 12 supra and accompanying te~t.
26 , Quinn &. Phillips, .tupro note 22. at 239'.
27. Grihet7. &. Gmd, .wpra note 24. at 1217.
28 .
Quinn &. Phillip5 • .fUpra note 22 . at 240 n.33.
29. levi. Focol LtW'ragt Point.r In Prob/~ms Rtlatlng 10 Rtal Prop,"'Y. 66 COLUM. L. REV.
275. 278 (1966).
)0. Quinn &. Phillips . .fupra note 22. at 242. Examples or such legislation arc N.Y. REAL
PkOP. ACTIONS LAW § 155 (McKinney Supp . 1973): MASS. ANN . LAWS, th . 239. § SA (Supp.
1973): PA. STAT. ANN, tiL 35. § 1700-01 (Su.PP, 1973), In New York r as in other jurisdictions.
rent imJ'l;liring i\tututell are designed to give the individual tenant the power to withhold rent when
the hlndlord fail!! to perform his service obligation. Other New York Statutes are designed for
nggregate tenant withholding, r .g, N.Y. REAL PROP. ACTIONS LAw. §§ 769·82 (McKinney Supp.
1973), The New York statutory plan allows tenants to channel rent into the courts, r .g. N,Y, REAL
PROP ACTIONS LAW § 755(2) (McKinney 1963). or provide the tenant with a defense should he
.lItop paying rent and then fin~ himselffaeed with summary eviction proceedihgs. E" .• N.Y. MULT.
Dwell. LAW § 302-(0)(3)(c) (McKinney Supp. 1973).
. The Model Code provides for limited rent withholding. Section 2-207 provides for termination
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TEXAS TECH LA W REVIEW
[Vol. 5:749
advanced of the rent abating statutes is New York City's Rent Strike
Law" which has been called the remedy "most responsive" to the
problems of housing code enforcement." The statute provides a procedure whereby the tenants of a building in an advanced state of disrepair
may apply to the court to appoint an administrator who will collect
rents from all tenants and apply them to the rehabilitation of the building. The landlord may not collect any rent until the administrator has
completed the necessary repairs ." Unlike other tenant-initiated remedies" which seek to force the landlord to make repairs by depriving him
of rents until he does, the New York statu te gives the tenants direct
control over the repair and rehabilitation process."
Problems exist even with this type of "advanced" legislation. First,
elTective organization of all tenants of a building is difficult. Second, in
New York at least, the courts have found the statutory scheme a clumsy
vehicle for correcting some types of housing problems, and the courts
have had difficulty in finding willing administrators and in defining the
scope of the administrator's powers. Third, the financial feasibility of
the scheme may be questionable." Apart from these problems, the New
York courts have restricted the scope of their statute by holding that it
applies only to multiple dwellings" and that the rent strike is not to be
"I' the agreement or 1/4 ahatement of rent should the landlord fail to provide (1) hot water or (2)
udequate heat or water . Section 2-208 allows rent abatement in casc of fire or casualty losl
uccording to the usable portion's fair market value. MODEL CODE, supra note 16. at §§ 2-207.
1·208 (1969).
The Uniform Re~idential Landlord and Tenant Act does not provide for rent abatement a. ,
~uch
except for the lundlord's failure to deliver possession. UNIFORM
LANDLORD AND
TENANT ACT I
§ 4. 102 (1912) . Upon the landlord's wmull or negligent failure to supply heat. ,water. hot water,
or essential services. the tenant may upon notice either
(I) procure reasonable amounts of heat. hot water, running water. electricity, gas, and
other essential ~rvices during the period of the landlord' s noncompliance and deduct
their actual and reasonable cost from the rent; or (2) recover damages based on the
diminution in the fair rental value of the dwelling unit; or (3) procure reasonable substi·
lute housing during the period of the landlord's noncompliance, in which case the tenant
is e~cused from paying rent for the period of the landlord's noncompliance .
Id. § 4. 104 (1912) .
31. N . Y. RE.o\L PROP. ACTIONS LAW art. 7A (McKinney Supp. 1973).
32. Comment, Artlcl~ 7A R~vl.flt~d: N~w York City's Statutory Rt!nt Strlkt! Law, 8 COLUM.
J.l. 8< Soc. PROD. 52), 526 (1912).
.
33. Id. at 526; U~ N.V . REAL PROP. ACTIONS LAW M 755.756 (McKinney Supp. 1913).
34. see note 26 .fupra .
)5. Cf N.Y. ReAL PROP. ACTION. LAw ~ 777(c) (McKinney Supp . 1973).
36. Comment, Artlclt! 7A Rt!vl,fllt!d: Nrw York City's Statutory Rt!nl Slrlkr Law, 8 COLUM.
J .l. 8< Soc. PRO • . 52), 528·47 (1912).
31. N.Y. REAL PROP. ACTIONS LAw f 782 (McKinney Supp. 1913) (dwellings with .iIl or
more separate units).
1974)
WARRANTY OF HABITABILITY
755
allowed for tenants of "luxury" and middle-income dwellings."
Housing Code enforcement, either through municipal sanctions or
organized tenant action, has yet to prove an effective means of dealing
with landlord-tenant problems. Although present methods of enforcing
compliance are deficient, many .officials are not convinced that strict
enforcement of even an ideal code will really benefit the tenants because
landlords can simply pass on added costs to the tenant." Moreover,
many tenants lack the political power or the financial ability to maintain
a sustained or feasible regulatory effort on their behalf." Many tenant
rights statutes fall short of providing strong protection because the remedies are often encumbered with official certifications, court proceedings, and administrative pitfalls that promote continued landlord evasion and delay."
V.
DEVELOPMENT Of THE DOCTRINE Of IMPLIED WARRANTY Of
HABrrABILlTY
The courts in an increasing number of jurisdictions have recognized
. the contractual nature of a lease and an implied warranty of habitability ." This recognition has come in an effort to deal with the conflicting
interests of landlords and tenants, a problem which the common law
completely failed to resolve and which the housing codes have met only
half way . Appellate courts in ten jurisdictions (Wisconsin," Hawaii,"
N.ew Jersey," District of Columbia,"_ New Hampshire," Iowa," Illinois," Michigan," Missouri," and Massachusetts") have ruled in favor
of the implied warranty. as have lower courts in four more jurisdictions
38. Comment. Articlr 7A Rf'lI/.f iftd: Ntw York City's Statutory Rtnt Strllcr LAw, 8 COLUM.
J.t. & Soc. PROB. 523. 535 (1972). Su cases cited Id. nn.93-94.
39. Ackerman . .tupro nole 14. at 1094-95. Sf" I'",Tolly authorities cited Id. n.2.
40. Id.
41 . Daniel~. ,fuprD note II. at 930.
42 . See Rolc..; 39-52 Infra and accompanying tellit.
I
43 . Pines v, Pcrllsion . 14 Wis . 2d 590, III N .W.2d 409 (1961).
44. Lemle v. Breeden. 51 Hawaii 426. 462 P.2d 470 (1969).
45 . Marini v. Ireland . 56 N .J. '130. 265 A.id 526 (1970).
46. Juvinll v. First Nat'l Realty Corp .• 428 F.ld 1071 (D.C. Cir. 1971): Brown v. Southall
Reully Co .• 237 A.2d 834 (D.C. Ct. App. 1968).
•
47 . ·Kline v. Burn,. 276 A.2d 248 (N .H . 197i).
48. MeuK v. Fox , 200 N.W.2d 191 (Iowa 1912),
49. Juck Spring. Inc. v. Litlle. SO 111. 2d 351 . 280 N .E.2d 208 (1972).
SO. Rome v, Walker. 38 Mieh. App. 458. 196 N.W.2d 8SO (1972).
51. King v. Moorehead. 495 S .W.2d 65 (Mo. Ct. App. 1973).
52. B""loo Hou.ing Au1horlly v. Hemingway. 29J"N .E.2d 831 (M .... 1973).
756
. TEXAS TECH LA W REVIEW
[Vol. 5:749
(New York," California," Ohio," and Colorado"). These courts have
recognized the prevalence of inequality of bargaining power in residential leasing situations and have attempted to bring the rights of the
landlord and tenant more into balance by adopting the implied warranty
of habitability . Courts which have adopted the implied warranty of
habitability have found differing doctrinal bases upon which to rest their
decisions. Broadly speaking, however, there are two theoretical bases
for recognition of the implied warranty in residential leases: sales contract theory and housing code theory.
A.
Sale Contract Th eory
An implied warranty of fitness has been recognized for some time
in sales of chattels." The Uniform Commercial Code implies a warranty
of merchantability into every contract for the sale of goods, as well as
a warranty of fitness for the particular purpose intended by the buyer
and known by the seller." Under these sales law concepts the buyer can
recover damages by showing that the goods sold him were defective and
that as a result he was injured." Application of the implied warranty
theory to residential leasing is a logical expansion of the growing concern for consumer protection."
Several recent cases illustrate how the im plied warranty theory
from the law of sales has been applied to residential leases. The Supreme
Court of Hawaii drew heavily on the law of sales to imply a warranty
of habitability in residential leases. In Lernle v. Breeden," the court held
that due to an infestation with rats, a beach-front dwelling renting for
53 . £ .R.. Amanuensis. Ltd. v, Brown. 65 Misc. 2d 15.318 N .V.S.2d II (N,Y. City Civ. Ct .
. 1971).
54. Hin,on v. Deli,. 26 Cal. App. 3d 62. 102 Cal. Rplr . 661 (1972).
55. Glyco v. Schuill. 62 Ohio Op. 2d ·459. 289 N .E.2d 919 (Sylvania Mun . CI. 1972).
56. Quescnbury v. Patrick, Civ. No. 1240J.CCH POV.lAW RPTR . ~ 15,803 (Co, Ct. EI Paso
Co .. Colo. 1972).
57 . See W. PROSSER, HA NDBOOK Of THE LAW OF TORTS §§ 95,97 (3d ed . 1964).
58 . UN IFORM COMMERCIAL CODE §§ 2-314,2-315 (1962).
59, St!f' WHITE & SUMMERS. HANDBOOK OF THE LAW UNDER THE UNIFORM COMMERCIAL
CODf. § 9·6. al 286 (1972).
60. Several court~ have applied the implied warranty
merchantibilily to nonsale transactions. E.g., Bachner Y. Peanon. 419 P.2d 319. 8 CCH-U .C.C. Rplr. 515 (Alas. 1910) (leased
uirf'llune): Ci nlrone Y. Hertz Truck Leasing and Rental Service. 45 N .J. 434.~ 212 A.2d 769 (1965).
Cf Ru"cll v. Communily Blood Bank. Inc .• 185 So. 2d 749 (Fla. 1966). aU'd as modl/itd. 196 So . 2d 115 (Fla . 1967) (blood bank may be held liable for breach or warranty because the transaction arguably is a sale) . Su gtntrolly Fa rnsworth. Implltd Worrantlt.r 0/ Quality In Non-Sa/~
Ca..... . 57 COLUM . L. Rev. 653 (1957).
.
61. 51 Hawaii 426, 462 ,P.2d 470 (1969).
or
1974)
WARRANTY OF HABITABILITY
757
S800 per month was uninhabitable and unfit for residential purposes."
The court reasoned that
the application of an implied warranty of habitability in leases gives
recognition to the changes in leasing transactions today . It affirms the
fact th at n lease is. in essence, a sale as wen as a transfer of an estate
in land and is, more importantly, a contractual relationship . . . . An
implied warranty of habitability ... is a just and necessary implication. It is a doctrine which has its counterparts in the law of sales and
torts and one which when candidly countenanced is impelled by the
nature of the transaction and contemporary housing realities."
The Supreme Court of New Jersey has also relied upon sales theory
in recognizing an implied wa rranty of habitability. In Marini v.
Ireland," the court held that the landlord implicitly covenants to repair
and that the tenant's implied covenant to pay rent is dependent on the
landlord's satisfaction of his obligation." The court recognized that
covenants can be implied into leases based on the reasonable intentions
of contracting parties as shown by the language actually used. The
property had been ·rented for residential purposes, so the landlord must
have wa rranted that it would rem ain a fit residence during the entire
term of the lease."
Sales theory was also" important in the more recent major case,
King v. Moorehead." I n that case the Missouri Court of Appeals based
its recognition of the implied warranty of habitability in part upon
Missouri's erosion of caveat emptor in cases involving sales of houses ."
B.
Housing Code Theory ;
The majority of jurisdictions recognizing the implied warranty of
habitability have relied on legislative enactment of housing codes as the
foundation of the warranty. In Pines v. Perssion," the first case to
recognize the duty ·of the landlord to provide a habitable dwelling, the
court spoke of legislative policy. In Pines, the lessees were college students who signed a lease in May for occupancy the next September
relying· in pilft upon the lessor' s promise to rehabilitate the dwelling.
(d. al _
. 462 P.2d ., 474.
(d.
56 N.J . IJO. 265 A.2d 526 (1970).
(d. al _ , 265 A.2d ., 534.
66. (d. al _
'265 A.2d . ' 533·34.
67. 495 S.W.2d 65 (Mo. CI. App. 1973).
68. (d . • ' 75 ."
69. 14 Wi •. 2d 590, III N.W.2d 409 (1961).
62 .
63:
64.
65 .
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TEXAS TECH LA W REVIEW
[Vol. 5:749
Upon their return to school the lessees found the house in the same state
of filth and disrepair and vacated after attempting their own improvements. The lessees sued the landlord to recover their deposit of three
months advance rent and the value of their labor and materials. The
Wisconsin Supreme Court reasoned that by placing statutory duties
upon landlords with respect to the condition of rented premises,
The legislature had made a policy judgment-that it is socially (and
politically) desireable to impose . these duties upon a property
owner-which has rendered the bId common law rule [caveat emptor)
obsolete. To follow the old rule of no implied warranty of habitability
in leases would ... be inconsistent with the current legislative policy
concerning housing standards."
The court then held that the covenants of rent and habitability are
mutually dependent, and that the tenants were only liable for the reasonable rental value of the dwelling while occupied."
One important case, Javin.r v. First National Realty Corp.," has
recognized both theoretical bases for the implied warranty of habitability . But the Javin.r court ultimately relied on the District of Columbia
Housing Code to reject the common law rule that the landlord owes no
duty to repair. The court reasoned that the common law rule could not
co-exist with the obligations imposed on the landlord by the modern
housing code." Therefore, the court held, a warranty of habitability,
its scope measured by standards of the housing code, would be implied
into leases of urban dwellings covered by the code." In support of its
holding, the court reasoned that the code implicitly requires the warranty and that by signing the lease, the landlord had undertaken a
70. Id. " 596. III N.W.2d al 412-13 .
11 . Id. The 5igniticance of the Pint.t holding is perhaps limited because the court also found
the fact!> of the case to lie within the "'ong recogn ized exception" to the no warranty doctrine which
existed for short·term leases oJ furnished dwellings. Id. at 413 . One rationale for that exception
was that the lessee. being in immediate need of a home. could not be expected to inspect the
dwelling thoroughly .
72. 428 F.2d 1011 (D.C. Cir. 1970), ,tv'g sub nom Saunders ... . First Nafl Realty Corp.,
245 A.2d 836 (D.C. Cl. App. 1968). <m. d'.',d. 400 U .S. 925 (1970). In speaking aboullhe sale
contruct ha~i~ for the warranty of habitability. the court felt that leases or ,urban dwelling unit.
~hould be int~rpreted like any olher contract.ld. ai 1015. The court noted.t.hat (1) in interpreting
~ale~ contracu. court~ have sought to protect the Irglllma" 'xp'('IQllon~ or the buyer and have .
widened the ~el1er'~ re~ponsibi1ities: (2) in renting a chattel or buying services, or .ome combh;ation
(hereof. the con~umer musl rely on the skill and honesty or the supplier; (3) as to .ales or new
home.,. Court~ have placed warranty liability on sellen and on builders. 1tI. at Ion. 1076. '
73. Id. al 1076-77. .'
74. Id. al t072-73.
1974]
WARRANTY OF HABITABILITY
759
continuing obligation to maintain the premises in accordance with all
applicable law."
VI.
THRESHOLD QUESTIONS IN IMPLIED WARRANTY CASES
A.
What constitutes a breach?
The question of what conduct (or lack of conduct) constitutes a
breach of the warranty of habitability has been neglected in many decisions. The answer to the question will vary depending on whether there
is a housing code in the local jurisdiction which outlines the limits of
habitability. It will be recalled that the tenant has two basic interests: a
fundamental interest in obtaining a habitable home" and an expectation
interest that the home he obtains will be of a quality consistent with the
rental price." Where there is no local housing code, a breach of the
implied warranty of habitability will consist of some invasion of one of
these interests.
A multitude of acts could be an invasion of the tenant's interest in
obtaining a habitable home. It would not be difficult to determine that
a breach had occurred where the condition has forced the tenant to
vacate, as was the case in Lemle." The question becomes more difficult
where the tenant remains in residence. In Marini the court stated simply
that the landlord must "repair damage to vital facilities"" brought on
through normal wear and tear . The court found that the scope of vital
facilities and the extent and type of maintenance required is limited, and
governed by, the type property rented and the rent reserved." The materiality of invasion and the question of breach also should depend on (I)
the nature of the defect or deficiency; (2) its effect on the life, health,
or safety of the tenant; (3) the length of time it persisted; and (4) the
age of the structure." According to these principles, such major defects
as failure of heating, plumbing, or electricity; structural defects in
floors, ceilings, walls, stairs, or porches; or infestation with rodents
would clearly constitute a material breach of a warranty of habitability.
All of these defects could constitute a breach regardless of monthly
rental or the tenant's income level because they fall within the funda75.
76:
77.
/d. al 1080·81.
Sec text accompanying note 14 .!uprQ ,
See tcxt accompanying note IS II11'ro.
78. 51 Haw.ii 426. 462 P.2d 470 (1969).
79. 56 N.J. 130.265 A.2d 526 (1970).
SO. Iti. al _ . 265 A.2d al 534.
81. King Y. Moorehead, 495 S.W.2d 65, 76 (Mo. Ct. App. 1973). .
760
TEXAS TECH LA W REVIEW
[Vol. 5:749
mental tenant interest in obtaining a habitable home."
As the tenant' s income or the apartment's rental moves out of the
poverty level , the establishment of a breach through an invasion of the
expectation interest becomes more likely." The nature of the defect
becomes less important as its duration lengthens and it becomes more
annoying. Thus for moderate-cost housing, failure of such things as
elevator service" or janitorial service in common areas" can constitute
a breach which justifies some relief. In a "luxury" apartment , the failure
of air conditioning in August coupled with the landlord's refusal or
failure to repair could justifiably be termed a material breach of the
landlord 's warranty of habitability.
The question of what constitutes a breach is made easier in housing
code jurisdictions, at least in the case of dwellings covered by the statute.
In these cases, the existing law at the time and place of the making of
the co ntract is deemed to be a part thereof, and the warranty may then
be fulfilled by substantial compliance with the building code." The service obligation of the landlord to the tenant is specified in the housing
code which is deemed a part of each lease. The landlord's obligation is
measured by the terms of the code and the existence of code violations
would seem to be a prim a facie breach of the landlord's covenant. The
typical code, however, does not extend to all dwellings, nor to the expectation ' interests of middle- to upper-income tenants. The code itself,
seems to establish only minimum standards of habitability." Possibly
for these reasons, courts in code jurisdictions have found it necessary
l. . determining the existence of a breach to enumerate factors to be
considered which are similar to those listed by the noncode courts.
Among the relevant factors are (I) whether the defects violated the code,
(2) the natu re of the defect, (3) its effect on safety or sanitation, (4) the
age of the structure, and (5) the amount of the monthly rent."
B.
What Must the Tenant Do to be Afforded a Remedy for the
Breach?
Assuming the presence of a defect of sufficient severity to constitute a breach of the implied warranty of habitability, recovery for the
82 . Cf Ackerman . .fupro nole 14. al 1195 :
83 . 10.
84 . ('I Academy Spires. Inc. v. Brown. I II N.J . Super 477. 268 A.2d 556 (1970) ..
85 . S" .H,"ri' v . H.G. Smithy Co .. 429 F.2d 744 (D.C. Cir. 1970).
86. Juck Spring. Inc. v. Little. 50 111. 2d 351. 280 N.E.2d 208, 214. 217 (1972).
87 . S" Glyco v. Schultz. 289 N.E.2d 919. 925 (County Munic. CI. Ohio 1972).
88. Mea," v. Fo,. 200 N.W.2d 791. 797 (Iowa 1972).
.
1974)
WARRANTY OF HAQITABILlTY
761
tenant is not automatic. Several factors bear on the tenant's right to
recover. The initial requirement for tenant recovery should be that the
tenant not have caused the defect himself." The goal of recognizing the
implied warranty of habitability is not to allow the tenant to cause
damage to the property as a means of being relieved of the obligation
to pay rent. The initial requirement for the tenant, therefore, is that he
must directly or indirectly allege that the defect arose through no fault
of his own, and that because the landlord failed to repair or otherwise
remedy the defect it constituted a breach of the warranty of habitability.
Also affecting the tenant's right to recover is the question of when
the defect arose. The courts have developed pleading requirements for
cases where defects existed at the inception of the lease which differ
from those for cases where the defect arose at some point during the
term of the lease." When the defect was in existence at the inception of
the lease, the tenant need show only the existence· of the defect to entitle
him to some recovery for damages. This is because the landlord warrants that the house is free from defects at the inception of the lease.
Thus the tenant in Lemfe had only to allege the presence of rats and
their natural effeci upon his and his family's sensibilities." The existence
of the defect at the inception of the lease makes irrelevant any showing
that the landlord tried to remedy the situation after the tenant occupied
the premises."
But the landlord does not covenant by his warranty that the dwelling unit will never develop a defect; rather, as to subsequent happenings,
he warrants that he will repair or replace so that the unit will remain in
as good condition :Is it was at the inception of the lease. Thus the Lemfe
court found that from the inception of the lease, a landlord warrants
that there are no latent defects in facilities and utilities vital to the use
of the premises for residential purposes, and that the house will remain
in that condition throughout the entire term ." But where the defect
arose after inception of the lease the tenant must respond to the basic
89. Set' Juvins v. First Nat'! Realty Corp .. 428 F.2d 1011, 1082 "n.62-63 (D ,C. CiT . 1970).
90. Set' M. MOlikovitz. Refl' Withholdi"g and ,ht ImpUed Warrant y of Habl,ablUty-Somt
Ntw 8rta/(tlrrouglu, 4 ClOHS E. Rev. 49 (1970).
91. Lemle v. Breeden . 51 Hawaii 426. 478. 462 P.2d 470. 474 (1969).
92 . Id. Concerning the landlord's attempts to remedy the situation. the court noted that
(h'c dcrendant had it within her power to keep (the rats} out by proper and timely~crecning
und extermination procedures. Indeed this was done berOTe the next tenant
moved in . But to begin !luch procedures aner the (tenant) had occupied the dwelllngind
10 expect thol he have Ihe requisite patience and fortitude in the face of trial and error
methods or extermination was 100 much to ask . Id.
93. Mea,e Y. Fo•• 200 N.W .2d 791. 796 (Iowa 1972).
762
TEXAS TECH LA W REVIEW
(Vol. 5:749
contractual duty to notify the landlord of the defect." Therefore, as a
condition to recovery for a post-inception defect, the tenant must allege
that he gave the landlord a positive and reasonable no,tice of the defect,
requested its correction, and allowed a reasonable period of time for the
landlord to effect the repair or replacement."
VII.
REMEDIES FOR BREACH OF THE IMPLIED WARRANTY OF
HABITABILITY
A.
Remedies recognized
Tenants who have successfully established breach of the implied
warranty of habitability have been accorded a variety of remedies.
Courts have granted to ,tenants the right to recover advance rents upon
vacaling the premises, to make self-help repairs, and to withhold rents.
The earliest cases dealing with the implied warranty of habitability
were suits filed by tenants to recover advance rents after the tenants had
been forced to vacate the premises." These si tuations, therefore, could
have fit the old doctrine of constructive eviction, which required that the
tenant vacate the premises because of the defect: For example, in Pines
the court could have used the constructive eviction doctrine when it
recognized that the covenants of rent and habitability were mutually
dependent and allowed the tenants, because they had been forced to
vacate, a recovery of all but the "reasonable rental value" for the month
that they had occupied the house." In Lemle. however, the court clearly
recognized that the implied warranty of habitability and constructive
eviction were two distinct theories." Constructive evicti'on had been
developed to work within the old framework of caveat emptor to circumvent that rule's harshness, and had been used. as a substitute for
dependency of covenants." The implied warranty of habitability, however, superseded caveat emptor. The court found it an absurd proposition that a tenant could not claim un inhabitability and continue to
inhabit.'oo By relying on the implied warranty, rather than constructive
94 . Id. 01 797 .
95. Benito v. Gambino. 63 N.J . 460. 308, A.2d 17 (1973); 3~~ Blumberg &. Robbin••
R,troocflvt Rt'nl Aholf'ml'nl: A Landmark Tf'nanl Rl'mf'dy, 1 ClOH5!! REV. 323 (1973),
96. Lemlc v, Breeden. 51 Hawaii 426. 462 P.2d 470 (1969): Pines v. Pension. 14 Wi •. 2d 590. III N.W.2d 409 (1961) .
97. 14 Wi •. 2d 590. _ . III N.W.2d 409. 413 (1961).
98. 51 Howaii 426. _ . 462 P.2d 470. 475 (1969).
99 . Id .
100. Id .•' _ . 462 P.2d al 475.
1974)
WARRANTY OF HABITABILITY
763
eviction (and its requirement that tenants first vacate), the court reasoned that a "more consistent and responsive set of remedies" became
available, namely, the contract remedies of damages, reformation, and
recission . UII
The second theory of remedy for breach of the implied warranty
of habitability has been based on the idea that in every lease the landlord
impliedly covenants to repair the premises. In Marini, the New Jersey
Supreme Court recognized an implied covenant to repair and said that
the landlord's failure to repair amounted to a constructive eviction .'"
The court, however, recognized that the right of a tenant to remove and
terminate his rent obligation is of little comfort when houses are so hard
to find . It therefore accorded the tenant the alternative remedy of termi- .
nating the cause of the constructive eviction where the cause is the
failure of the landlord to make reasonable repairs .'" This course of
action is accompanied by the right to offset against rent the cost of such
repairs, when made, provided the repairs are reasonable in light of the
value of the leasehold. In order to protect the landlord against possible
abuse of the remedy the tenant may be required to deposit the full
amount of unpaid rent into the registry of the court pending the outcome
of the suit.'"
The third and broadest use of·the implied warranty of habitability
has been as an affirmative basis for withholding rent and as a defense
to the landlord's subsequent action for rent or possession. The landmark
case in this area is also the first major case to apply the implied warranty doctrine to leases involving urban , low-income tenants. In Javins
v. First ' National R ealty Corp.,'" the landlord sought possession from
three tenants of a multiunit building for nonpayment of rent. The tenants admitted nonpayment, but offered to prove, as an equitable defense, that there wer.e approximatley 1500 violations of the District of
Columbia Housing Regulations in the bUilding. Some of the violations
affected these tenanis' premises directly and others affected common
101. /d. : Q('C'Ord Mease v. Fox. 200 N .W.2d 791 . 796-97 (Iowa 1972); Glyeo v. Schultz, 35
Ohio Mi,c. 129. _
, 62 Ohio Op. 2d 459. _ . 289 N.E .2d 919. 923 (Syl,ania Mun . CI. 1972)
("ordinary contract remed i e.~"); King v. Moorehead. 495 S.W.2d 65, 76 (Mo . Ct. App. 1973)
("hu!; ic rcmedic!; of contrllct law" ).
102. 56 N.J. 130. _ . 265 A.2d 526. 534 (1970).
103 . Id. "1 _
. 265 A.2d .1 535.
104 . (d. The repai r und deduct. or self-help remedy is a mainst,ay remedy ofbolh the Model
Code und the Uniform Act. S~~ MODEL CODE, .rupra nole 16. § 2·206: UNIFOkM RESIDENTIAL
LANDLORD AND TENANT ACT §§ 4.103. 4.104 (1912). The self·help remedy has not, however. round
much active judicial support. It is mentioned in Jack Spring. Inc. v. little, SO III . 2d 351, _
280 N.E.2d 208. 222 (1972) (concurrin8 opinion).
lOS. 428 F.2d 1071 (D.C. Cir. 1970).
764
TEXAS TECH LA W REVIEW
[Vol. 5:749
areas .'" The trial court and the District of Columbia Court of Appeals
, disallowed the proffered proof.'" On further appeal , the United States
. Court of Appeals for the District of Columbia Circuit rejected the old
no-repair rule and upheld the tenants' right to present their defense. The
court reasoned that
Since a lease contract specifies a particular period of time during which
the tenant has the right to use his apartment for shelter, he may
legitimately expect thllt the apartment will be fit for habitation for the
time period for which it is rented . . . . Since the lessees continue [to
be obligated for) the same rent, they are entitled to expect that the
landlord will continue to keep the premises in their beginning condition
during the lease term.'"
The court found that under contract law principles the tenants' rent
obligation is dependent upon performance of the landlord's obligations.
To determine if any back rent is owed, the tenant therefore must be
given opportunity to prove the housing code violations alleged as a
breach of the implied warranty of habitability.'ot The court ordered, as
a protection to the landlord , that rent payments for periods during
which the suit is pending be placed in escrow. The money in escrow was
to represent only rent as it came due. The trial would determine the '
liability of the tenants for past due, unpaid rent. The escrowed rent
would be apportioned between the landlord and tenant on the basis of
the finding of the percentage of rent actually due. If the landlord repairs
during the pendency of the suit he could amend his complaint to so
allege, in which case the distribution of the escrowed rent would be
altered .'"
The Civil Court of New York City has also allowed proof ofhousing code violations as defenses to nonpayment eviction proceedings in
cases where (I) the landlord makes no effort to comply with the law,
and the violation seriously affects habitability; (2) substantial violations
exist , and code enforcement remedies have been pursued but were ineffective; or (3) substantial violations have occurred, the continuance of
which is due to the landlord's purpose to force the tenant to abandon.'"
106. Id. at IOn.
_
107. Saunders v. First Nat'l Realty Corp., 24S A.2d 836 (D.C. Ct. App. 1968), ,dd lub
nom Juvins v. FirM Nat'l Realty Corp .. 428 F.2d 1071 (O.C. Cir. 1970).
108. 428 F.2d ot 1079.
109. Id. 01 1082.
110. Id. 01 1083 n.67.
111. Amanuen.i., Ltd. Y. Brown, 6S Misc. 2d IS, ~ 318 N.Y.S.2d II, 19 (New York
Cily Civ. CI. 1971).
1974)
WARRANTY OF HABITABILITY
765
In New York, the rent abates in proportion to the gravity of the violations.'"
B. Effectiveness of the Remedies in Resolving the
Conflicting Interests Between Landlords and Tenants
Where the landlord has breached the implied warranty orhabitability, the "basic contract remedies" available to the tenant will allow him
to: (I) rescind the lease contract and abandon the premises without
further liability for rent payment;113 (2) seek reformation of the lease
to allow continued occupancy of the premises at reduced rental;'" or (3)
alnrmatively sue the landlord for loss of the value of his contract.'15 The
errectiveness of these remedies of recission, reformation, and damages
is questionable.
The remedy of recission is similar to the constructive eviction doctrine and the vacate order issued under housing codes as each requires
the tenant to vacate the premises and find substitute housing. Recission,
therefore. provides little help in alleviating the housing shortage'" for
low-income tenants and does little better for moderate- to upper-income
tenants . Because of this factor, the tenant is effectively locked into an
unfortunate situation'" if recission is the only available remedy for
breach of warranty . Even if substitute housing is available, recission
may not be a desirable remedy . First, there is the lost time, trouble, and
expense of moving. Second, the recission remedy has no real punitive
errect on the landlord because the tenant's moving leaves the landlord
free to 're-rent the property without obligating him to repair the premIses.
Neither is reformation always an appropriate remedy for breach of
warranty. Reformation or an instrument or contract is the remedy for
mistake. Its purpose is to make a mistaken writing conform to the
112 . Id. The cou rt 'also noted tha t da mages to the tenant for breach or the warranty of fitness
could he greater, than the amount of the ' rent sought. Id. at 22. 318 N ,V.S .2d at 21.
113 ,' E.g., Pinel! v. Per~ lI i on. 14 Wis. 2d 590. III N .W.2d 409 (1961): Lemle v. Breeden, Sl
H:ow:oii 426. 462 P.2d 470 (1969).
114. Cf Skillern, Impfltd Worronllt-,f in Lto.fts: Tilt Nud for Chongt. 44 DENVER L.J . 387
(1967).
115. Kline v. Burnll, 276 A.2d 248 (N .H : 1971): Quesenbury~v . Patrick , Civ. No. 12403,
CCH POY. LAW RPTR . 'U ' 15.803 (EI Paso County Ct. Colo. 1972); Berzito v. Gambino, 63 N .Y.
460. 308 A.2d 17 (1973): ut Blumberg & Robbins, Rttroactlvt Rt,,, Abattmtnt: A Landmark
Trnant Rtmtdy, 7 etOH!E REV . 323 (1973) .
116. See nole~ 1·12 .'Iupra and accompanying tell.t.
.
117. Juck Spring. Inc . Y. linle.lO III . 2d 311 •._ . 280 N .E.2d 208. 222 (1972) (concurrins
opinion) .
766
TEXAS TECH LA W REVIEW
[Vol. 5:749
antecedent expressions of the parties.'" The instrument is then given
effect according to its reformed terms. The application of reformation
to leases of uninhabitable property seems proper where the defect was
present at inception. In this situation, the parties could mistakenly have
thought the dwelling to be habitable. The result of application of reformation, however, is not clear. Under one possible approach, reformation of the lease would allow continued occupancy of a portion of the
premises at a reduced rental.'" This approach, however, would seem
more appropriate in the commercial setting where most of the rented
space is not divided into separate rooms . Under an alternative approach, reformation might be applied to lower the rent obligation alone,
as though the parties were mistaken as to the value of the dwelling. This
application would provide some relief to the tenant,. but would not meet
his interest in a decent home. The landlord's service obligation would
not be altered in any way .
To allow an award of damages presents problems. The relief provided by the remedy of damages is similar to that of reformation, except
th at it will allow the tenant to recover any portion of prior rental payments which were in excess of the actual rental value of the defective
premises. The measure or damages used by the courts while the tenant
is still in possession is either the agreed rent less the rair rental value in
the derective condition,'20 or the rair rental value as warranted less the
fair rental value in the derective condition.'" The tenant will be able to
recover the value of his bargain (if any) if the second measure is
adopted. The sa me valuations can be used in applying rerormation to
lower the remaining rent due, thus idemnifying the ,tenant for loss of
value on his contract. Determination or these "rair rental values," however, is not an easy matter, especially in the low-income housing market
where rents are grossly inflated, reflecting demand rather than quality .'" A determination .of rental value may require expert witnesses, an
onerous requirement for low-income tenants unable to pay witness fees.
Moreover, an award of damages again .places no requirement on the
118. A . CORBIN, CONTRA.CTS § 614, at 569 (one vol. ed . 1952).
119. Skillern, Impllt'd Warrantl",f In LtD,' ''.,:. Th e Nt'td fo,. Changt. 44 DENVEk l.J. 387.
396 (1967). .
•
120. King ' . Moorehead. ~95 S.W.2d 65. 76 (Mo . 0 . App. 1973): Glyco ,. Schullz. 35 Ohio Mi,c . 129. _.62 Ohio Op. 2d 459. _
289 N.E.2d 919. 926 (Syl,.n i. Mun. Cl. 1973): Kline
' . Burn, . 276 A.2d 248. 252 (N .H. 1971).
121. Mease v, Fox . 200 N.W.2d 791. 197 (Iowa 1972). After vacalion, the condition
the
premisc~ becomes irrelevant. but the tenant has lost the value of his contract, thus the meature
damages is the fair rental value as warranted less the promised rent for that period.
122. Su Comment. 84 HA.lV. t . REV . 729. 736--37 (1911); Dantels, Jupro note II. at .91S .
or
or
1974)
WARRANTY OF HABITABILITY
767
landlord to ma ke any repairs to the dwelling unit.
Although the "basic contract remedies" (recission, reformation, or
dam ages) may lower or terminate the tenant:s rental obligation, they
have no significant effect upon the landlord's service obligation. Perhaps
the most significant fault with the basic contract remedies, however, is
that the burden of initiating litigation falls upon the tenant. This burden
may fall easily upon moderate to upper-income tenants, but it will weigh
heavily upon the low-income tenant who can not invest more of his
income in rent payments or in attorney's fees to secure the quality of
housing he thought he was getting initially.
In addition to the basic contract remedies, the courts have recognized the remedy of repair and deduct. This remedy should be very
effective for minor rep~irs to single-family units by moderate- to upperincome tena nts when accompanied by a requirement of good Faith. It
allows the tenant to procure the needed repair or service or make them
himselF and include in the reasonable cost of the repairs a sum For his
own labor .'" This remedy should be acceptable to landlords as it allows
improvements of their property without an out-oF-pocket expenditure.
As a practical matter, however , this re medy will contribute little toward
allevia ting the housing problems of low-income tenants or tenants of
multi-Family dwellings. The majority of these tenants do not have and
cannot obtain capital sufficient to finance major repairs to their buildings'" I n addition, the remedy could be subject to abuses involving
claims For repairs not actually made.
DeFensive rent withholding would seem the most effective of the
recognized tena nt remedies For breach of the implied warranty of habitability. The tenant utilizing this remedy may suspend rent payments
beginning at the time the breach arises.'" The burden is thus placed
upon the landlord to protect himselF by initiating litigation, either in a
suit for possession or For nonpayment. Filing suit allows the landlord
to avail himselF of court protection of his rental income interest. The
court may establish a protective escrow Fund once the landlord has filed
suit. The extent to which the rent is abated will be determined by the
court at the landlord's expense, ba'sed on the seriousness of the deFects,
123. Cf, Juck ' Spring. Inc. v. Litlle. SO III . 2d 351 . _ . 280 'N.E.2d 208. 222 (1972)
(concurring opinion).
124 . S~~ Daniels, .tupra note 11. at 939.
125. Sf'f' Juvin! Y. First Nat') Realty Co .. 428 F.ld 1071. 1082 (D.C. Cir. 1970). ern dtnltcl.
400 U.S. 925: arrord Amanuen.i•• Ltd . v. Brown. 65 Misc. 2d IS. _ . 318 N. V.S.2d II . 19 (N . V.
City Civ. Ct. 1971): Rome v. Walker. 38 Mich . App. 458. _
196 N.W.2d 850. 853 (CI. App.
1972).
TEXAS TECH LA W REVIEW
768
[Vol. 5:749
and the escrowed rentals will be apportioned accordingly .'"
The rent strike remedy authorized by some statutes can be an
elTective one for low-income tenants if they join together and refuse to
pay rent. A tremendous amount of pressure may be placed upon a
landlord if every tenant in that landlord's properties withholds the rental
price until necessary repairs are made.'21 The success of a large-scale
rent strike, however, depends largely upon tenant initiative. This is a
basic problem with the rent strike remedy. Tenant initiative may be
lacking because a landlord is a lmost sure to raise the monthly rent if
forced to make repairs. Tenants who could alTord a higher rent probably
would not be living in a dilapidated building.
A second problem with the remedy of defensive rent withholding
is that the equities of the situation shift when the picture changes from
one of a corporate landlord with many rental properties and other
sources of income, to one of a sole proprietor, possibly an elderly landlord who derives his sole support from the rental income from a few
properties.'" The problems of financing repairs are particularly acute
here, and rent withholding will be of little conceivable help. Increased
rent to help cover the cost of loans for repairs would be the inevitable
result of a rent strike against such an individual.
VIII.
EXPERIEN C E IN JURISDICTIONS WI1I C H RECOGNIZE THE IMPLIED
WARRANT V OF HABITABILITY
The case law in those jurisdictions which recognize the implied
warranty of habitability has indicated neither insurmountable problems
nor a nood of litigation. In Wisconsin and Hawaii, the first jurisdictions
. to recognize the warranty , there have been few significant cases. The
Wisconsin Supreme Court, in fact, has limited theelTect of the warranty
theory it holdly announced in 196\. In Dickhut v. Norton ,'" the court
reco)!nized that a landlord cannot evict a tenant in retaliation for reporting v,olations which could constitute a breach of warranty to the Milwaukee City Health De.partment.'30 The court, however, placed an
onerous burden of proof on a defendant tenant by requiring him to
prove by evidence clear and convincing that (I) a condition existed
which did, in fact, constitiJte a violati!!n; (2) the landlord knew of the
12l! . Sf'€' Dllniel~ • .,upra nole It . at 939, 941 .
127. Comment . Cu","tl"',rr", Aft'4f of Landlord· Trnanl Low In lowtJ , 22 DItAKE l. Rav.
376. )R2·R) (1973).
128 See nolc 14 .fUPI'O and accompanying text.
129 Dickhut v. No<ton . 173 N.W.2d 297 (Wi •. 1970).
130.
(d.
1974)
WARRANTY OF HABITABILITY
769
report or the violation; and (3) the I~ndlord sought to evict the tenant
ror the .<ofe reason or retaliation.'" The Wisconsin Supreme Court has
also rejuud to allow utilization of rent withholding as a means of enforcemeni of the implied warranty of habitability .'" The court conceded that the tenant could surrender the premises without being liable
for rent from the time of surrender if any cause made them uninhabitable, but felt that if rent withholding was to be authorized, it was for the
legislature to do SO.'33
The Supreme Court of Hawaii announced recognition of the implied warranty of habitability in Lemfe in 1969 . In a case decided shortly
after Lemfe the Hawaii court made it clear that it had not intended
Lemfe as a mere exception to the doctrine of caveat emptor for shortterm leases of furnished dwellings.'" In the later case the implied warranty was expressly made applicable to unfurnished dwellings as well.'" .
A more recent case in Hawaii, however, may tend to restrict the use of
the implied warranty of habitability to obtain tenant remedies. This may
be the result of the court's refusal to allow a tenant to assert the defense
of retaliatory eviction against a landlord who had attempted to evict him
because of his efforts to organize a tenant's union to combat landlord
abuses. l l i
The experience in New York with the implied warranty of habitability has been mainly in the Civil Court of New York City. This court
has found the warranty to be a necessary judicial tenant remedy despite
a comprehensive scheme of statutory remedies.'37 Moreover , the New
York City court has recognized the breach of warranty as a defense
which may be asserted against a landlord's possessory action for nonpayment of rent by a tenant of a middle-income apartmen!. '" This
defense will be available despite clauses in the lease absolving the landlord of liability fo r any set off should he bring such an action.'" But
the status of New York law remains unclear. Another lower court has
13 I. Id. a' 302.
132. Po,nan,ki v. Hood. 174 N.W.2d 528 (Wis. 1970).
133. Id. at 533.
134 .
lund v, MacArthur, 462 P.2d 482 (Hawaii 1969),
135. Id.
136. Aluli v. Tru,den. 508 P.2d 1217 (Hawaii 1973).
13i. S~r, r.g., Mannie Joseph. Inc. Y. Stewart, 71 Misc. 2d 160, 335 N .V.S .ld 709 ( N ,Y.
City Civ. et. 1972); Morbeth Really Corp. v. Ro.en.h ine. 67 Mi.c. 2d 325. 323 N.Y.S.2d 363
(N .Y. City Civ. Cl. 1971); Garcia v. Freelond Reolly . 63 Mi ... 2d 937, 314 N.Y.S.2d 215 (N.Y.
City Civ. Cl. 1970).
138. Morbeth Reolly .Corp. v. Udez. 73 Mi.c. 2d 996. 343 N.y.s.2d 406 (N.Y. City Civ.
et. 1973).
139. Steinberg v. Carrera. 74 Mi,c. 2d 32. 344 N.Y.S.2d 136 (N.Y. City Clv. Ct. 1913).
770
TEXAS TECH LAW REVIEW
[Vol. 5:749
refused to recognize the wa rmnty of habitability as a means of enforcing
the standards of the Building Code of the City of Rochester. ".
Several jurisdictions which have recognized the implied warranty
of hahitability have had few cases applying the warranty . In New
Hampshire, the supreme court refused to allow a landlord's attempt at
self-help eviction by shulling ofT heat and water to a nonpaying tenant's
apartment.'" In Illinois, the appellate court expanded the warranty remedy from a mere defense to a landlord's possessory action to a tenant's
allirmative cause of action for damages.'" The United States Supreme
Court has not spoken in an implied warranty case. In the Court's one
ruling in a landlord-tenant case, however, the Court has not been sympathetic to the low-income tenant seeking an inexpensive vehicle for
redress of landlord abuses.'" In Lindsey v. Normel,'" the Court held
that Oregon could treat the undertakings of landlord and tenant as
independent rather than dependent covenants, and that it is permissible
for states to segregate an action for possession of real property from
other actions arising out of the same factual situation.'" In reply to the
petitioners' claim that Oregon's procedure requiring defensive mallers
to he litigated in separate actions violated the equal protection clause
as applied to low-income tenants, the Court stated \hat
We are unable to perceive in [the Constitution any] guarantee of access
to dwelling of a particular quality, or any recognition of the right of a
tenant to occupy the real property of his landlord beyond the term of
his lease without the payment of rent or otherwise contrary to the
terms of the relevant agreement. Absent constitutional mandate, the
assurance of adequate housing and the definition of landlord-tenant
relationships are legislative, not judicial functions. Nor should we forget that the constitution expressly protects against confiscation of private property or the income therefrom. '"
The largest volu~e of litigation on the implied warranty of habitahility has occurred in New Jersey and the District of Columbia. In New
Jersey this may be explained because the initial decision recognizing the
warra nt y limited its use by allowing only two remedies, rescission and
140. Golden v. Gray, 68 Misc. 2d 679. 327 N.V,S.2d 458 (Monroe County Sup. Ct. 1971).
The cuse i~'ctl!lily distinguishahle on the fucts from those arising in New York City .
. 141. Dover v. BCP Realty. 112 N.H. 238, 293 A.2d 599 (1972).
142. Gillelle v. And."on. 4 III. App. 3d 838, 282 N.E.2d t49 (1972).
143. Lindsey v. Normel. 405 U.S. 56 ( 1972).
144. 405 U.S. 56 (1972).
145 . Id. al 67.
146. Id. al 74. ·
1974)
WARRANTY OF HABITABILITY
771
the right of self-help repair . More li(igation was then necessary to expand the list of available remedies. In Academy Spires. Inc. v. Brown,'"
the New Jersey court took judicial notice of the great housing shortage
in the state and decided it was unreasonable to require a tenant to move
liS II prerequisite to withholding of ren!.'" The court found it equally
unreasonable to require a tenant to ma ke repairs before his rent will
ahate.'" Apart from expanding the remedies for breach of the implied
warranty, the New Jersey courts have taken several other significant
steps. Some of the New Jersey decisions have been favorable to tenants.
For example, New Jersey courts have held that tenants can raise the
defense or counterclaim of breach of warranty in the landlord's summary action for possession ,'" that the landlord cannot retaliate against
the tenant for asserting his rights by evicting the tenant'" or by raising
the tenant's rent to an exorbitant rate,'" and that the tenant can affirmatively sue for damages caused by the uninhabitability of the property.'''
But some of the New Jersey decisions have limited the rights of tenants.
For example, the courts have held that the tenant's right to repair
defects and ofTset the cost against rent is available only to lessees of
residential properiy :'" Perhaps more important, the New Jersey courts
have held that tenants cannot bring an action for personal injuries based
on the implied warranty of habitability.'''
Courts in the District of Columhia, like those in New Jersey, have
developed a body of common law which reflects the realities of the
modern landlord-tenant relationship and which is additionally influenced by the comprehensive District of Columbia Landlord-Tenant
Regulations '" This body of law developed along two separate lines,
Illegal contract and implied warranty, perhaps because of the differing
viewpoints of the District and the Federal courts. The first case recognizing tenant rights was Edward.! v. Habib.'" an eviction action where
147. III N.J. Super. 477. 268 A.2d 556 (1970).
Id. a' _ . 268 A.2d al 558.
Id. al _ . 268 A.2d al 560.
148.
149 .
150. Sf't' Marrocco v, Felton. 112 N.J. Super. 226, 270 A.2d 739 (1972); Brookchesler, Inc,
v. Mallhews. 118 N.J. Supe., 565, 289 A.2d 275 (1972); Sprock v. Ja mes. 115 N.J. Super. 111.
278 A.2d 421 (1971).
lSI. Engler ,. Capilal Mgl. Corp .. H2 N.J. Super. 445. 271 A'.2d 615 (1970).
In E. & E. Newman, Inc. ,. Hallock, 116 N.J. Super. 220.281 A.2d 544 (1971).
IH. Dwyer ,. Skyline Apls. Inc .. 123 N.J. Super. 48, 301 A.2d 463.(1973).
Kruvant v, Sunrise Mkt .. Inc .• 11 2 N .J. Super. 509.211 A.2d 141 ( 1970) .
,
1:'i5. Bcrzito v. Gamhino, 63 N.J. 460. 308 A.2d 17 (1973): Ut Blumberg &. Robbins.
Rf'lroocllyf' Rtn, Abat'nlt'"t: A Landmark Tenant Rl'nudy. 7 CLOHSE REV. 323 (1973).
156. D.C. HOUSINO:REO. §§ 2901~14 (1970). ,.ep,.odurl,d In Daniels. Jupra note 11, Appen·
tlilt at 958.
157. 397 F.2d 687 (D.C. Cir. 1968). <trI. d•• I.d. 393 U.S. 1016 (1 969).
154.
,.
772
TEXAS TECH LAW REVIEW
[Vol. 5:749
the United States Court of Appeals for the District of Columbia Circuit
held that a tenant can assert defensively the landlord's retaliatory motivation for the eviction (the tenant having reported housing code violations).Further recognition of tenant rights came in Brown v. Southall
Realty Co.,'" where the District of Columbia Court of Appeals held
that in an eviction action for nonpayment a tenant can assert illegality
of the lease due to substantial housing code violations existing at the
inception or the lease. The implied warranty theory was then recognized
in Javins where the federal court held that a tenant can assert in defense
to an eviction action the breach of an implied warranty of habitability
where defects arise subsequent to the inception of the lease.'"
The District of Columbia courts have had ample opportunity to
discuss the issues involved in landlord-tenant cases because of a growing
number of cases and appeals.'" The federal court has been most active
since the Javins case, and has made the following decisions: (I) approved
of a tenant group's escrowing of rent to an independent credit union,
instead of into court as' approved in Javins ;'" (2) recognized the right
or tenants to bring an action for personal injuries based on the implied
warranty of habitability;'" (3) prescribed escrowing of rent only in those
summary possession actions in which the tenant pleads substantial housing code violations or demands a jury trial , with the burden of proving
the need ror such protection falling on the landlord, rather than on the
tenant to explain a failure to pay rent;'" (4) recognized the right of
15K. 237 A.2d 834 (D.C. Ct. App. 1968).
159. 428 F.2d 1071 (D.C . Cir. 1970), mI. drnlrd. 400 U.S. 925 (1970).
160. Bell v. Tsi ntol as Rea lty Co., 430 F.2d 474, 479·80 n. IO, 481 n.14 (D.C . Cir. 1970):
(I('m rd. Cooks v. Fowler, 437 F.2d 669, .672 (D.C. Cir. 1971).
161 . Dorfmann v. Boozer, 414 F.2d 1168 (D .C. Cir. 1969),
162. Harris v. H,G. Smithy Co .• 429 F.2d 744 (D.C. Cir. 1910): Clark v. O'Connor, 435
F.2d 104 (D.C. Cir. 1970): Kline v. 1500 Massachusetts Ave. Apt. Corp., 439 F.2d 477 (D.C. Cir .
1970). In /(lint'. the Iletion wa~
recover for injuries sustained after a criminal assault in the
common hallways of the apartment house: The Court relt th at the modern landlord-tenant relationship was closely analogous to that or innkeeper-guest. and found the landlord's dut y to provide
protection mising (I) 'fr om the logic of the situation itse1f. given the relation of the parties and the
r:l ct that the landlord was in a position to provide these protections. and (2) from an implied
ohlil,!::Ition on the landl ord . in the contract. to provide those protective measures which are within
his reasonahle capacity. Id. at 483 .
.
163. Bell v. Ti'lintolas Realty Co .. 430 F.2d 474 (D.C. Cir. 1970); Cooks v. Fowler,437 F.2d
669 (D .C. Cir. 1971). On the 1quei'ltion of disbursement of the escrowed funds (nont or which represented pO.fl dllt' rent) the court noted that tlle trial court generally finds the amount of rent
in urrean (owing. not due) even if the suit is for ponession only. if judgment is for the lenant, all
or 11 portion of the fund is returned to him. with the landlord receiving only the reasonable rental
value . If the landlord is ex.onerated. the entire fund goes to him as rental ror the litigation period.
If the tenant uhundons the property before the case gocs to trial, the landlord has obtained
possession without judicial resolution of the amount due, therefore any moneys paid to the court
to
1974)
WARRANTY OF HABITABILITY
773
tenants of a United States government housing project to go to court
on the issue of whether their government leases contained a warranty
of habitability as did private leases.'" Effective February I, 1971, however, Congress divested the federal court of its discretionary jurisdiction
over appeals from the District of Columbia Court of Appeals.'"
The District of Columbia Court of Appeals has been more solicitous of landlord rights. After recognizing the illegal contract theory in
SOli thall, the court has: (I) recognized a tenant's waiver of a Southall
defense;'" (2) held that even though violations existing at the inception
of the lease rendered the contract illegal and void, the tenant is not
absolved from all liability for rent, and the landlord should recover the
reasonable value of the premises in its defective condition;'" (3) found
that the implied warranty did not countenance abatement of rent for the
landlord's failure to meet his duty to provide security protection from
criminal activity;'" (4) refused to decide whether Javins reasoning applied to h single-family dwelling rented to one family, where the plaintiff
sought personal injury recovery;'" (5) in a suit for summary possession ,
where the tenant relied on a Southall defense, found no issue for which
the Seventh Amendment requires a jury trial.'70
IX.
THE RECURRING PROBLEM OF RETALIATORY EVICTION
The most devastating blow to concepts of tenant rights is dealt by
relallatory eviction. "If a landlord is free to evict or otherwise harass a
tenant who exercises his right to secure better housing conditions, few
tenants will use the remedies for fear of being put out on the street."'"
Under traditional landlord-tenant law, a landlord has been free to evict
"hou ld he returned to the tenant unles!! the landlord promptly goes to court seeking a money
judgment for the rent actually owing. 430 F.ld at 485 .
164. Knox Hill Tcnunt Council ... . Washington. 448 F.2d 1045 (D.C. CiT. 1911).
1M. D.C. CODE ANN . § 11·301 (1970): Daniels. supra note I t. at 932 R.135.
1M. Gord:ln .... Wm . J. Davj". Inc .• 210 A.ld 138 (D.C. Ct . App. 1970) .
167 . Wm . J. Davis, Inc . v. S1:1de. 271 ".2d 412 (D.C. CI. API'. 1970). The holding in this
elise is directly at odds with an earlier holding that where substantial housing code violations exist,
which 'cau~e i1 tena nt to withhold all of the monthly rent. the tenant cannot be ousted on a·.theory
that he is u trespa sser, having entered under a void lease. Diamond Housing Corp. v. Robinson,
257 A.2d 492 (D.C. Ct. AJlp . 1969). The court in Robin.m n held that '~ an agreement entered into
in violation of the law creutes no rights upon the wrongdoer. The (Sou thalll defense of illegality
doe~ not rescind the iIIcglll agreement, but merely prevents a party rro~ using the courts to enforce
~uch un ugreement." {d. ut 495. See notes 175· 183 Infra and accompanying luI.
'I=.!t
Wi11illm~ v. Wm. J. Davis. tnc ., 275 A.2d 231 (D.C. Ct. App. 1971).
Ifi9 . Wi Ilium, v. Auerbuch, 285 A.2d 101 (D .C. Cl. App. 1912) .
,10 . Pernell v. Southall Really, 294 A.2d 490 (D.C. Ct. App. 1912). <m. gran'H, 411 U.S.
91S (1913).
171. Dunieb • .,upra note II. at 943 .
774
TEXAS TECH LAW REVIEW
[Vol. 5:749
a tenant for any reason or for no reason .'" Those jurisdictions which
have attempted to reconcile the conflicting interests of tenants and landlords, therefore, have attempted to circumscribe the landlord's right to
interfere with tenants' efforts to secure decent housing.'"
Both the constitution and public policy furnish possible bases for
allowing tenants to assert , as a defense to a landlord's action for eviction, that the landlord's action is pr'o mpted by a desire to retaliate
against the tenant's assertion of rights . In Edwards. the landmark case
in this area, the court discussed the constitutional theories at length, but
actually based its holding on public policy.'" The court found that the
promulgation of the Housing Code of the District of Columbia implicitly readjusted the relative rights of landlords and tenants.'" In another
puhlic policy case, Dickhul v. Norlon, '" the court held that although a
landlord can evict for any legitimate reason or no reason , he cannot
terminate simply because a tenant has reported an actual housing code
violation .171 But the constitutional theory has also found recognition. In
Hosev v. C1uh van Corllandl,'" the federal district court accepted the
tenant's constitutional argument that the landlord was trying to evict
him in retaliation for his exercise of free speech and the right to petition
the government for redress of grievances. The tenant had attempted to
organize his co-tenants to complain to public officials about health and
building code violations. The court reasoned that retaliatory eviction,
if allowed by a New York state court, would be judicial enforcement of
r r;vate di scri mination and would be constitutionally impermissible because of the motive for which the landlord invoked state assistance .17t
172. £.1(., Fowell v, Continentnl Lire Ins. Co .. 55 A.2d 205 (D.C. Ct. App . 1947): cf
Dillm ond Housing Corp. v, Rohimlon. 251 A;2d 492 (D,C. Cl. App. 1969).
173 . Several !'Ilutes huve enucted legislation on the subject, t.,., CONN . GEN . STAT. ANN.
nrl. ~2·~4Od (Surp. 1969): ILL, R EV. STAT. ch. 80 § 71 (1911): MASS. GEN. LAWS ANN . th . 186
§ 18 (Supp. 1970): N.J . STAT. ANN. tit. 2A: 42·10.10 to .)2 (Supp. 1971); PA . STAT. ANN . tit. 35,
!HI 1700· ' (Surp. 1971), See MODEL CODE § 2·407; UNIFORM ReSIDENTIAL LANDLORD AND TEN·
ANT ACT § 5.101 (1972).
174. 397 F.2d 687 (D.C. Cir. 1968).
175. 397 F.2d at 690.
176. 173 N .W.2d 297 (Wis. 1970).
111. Id. at 302. See notes 124-25 ,fupTa and accompanying teltt. Accord. Aleltander Hamilton Savings und Loan Ass'n y, Whaley, 107 N.J ., Super 89, 257 A.2d 7 (1969), where the court
stilted that a judgment other than for the tenant would ,deprive him of his means of compelling a
lundl ord to correct condition!! in or ahout the premises that threaten health and 58fety.
17R. 299 F. Supp. 501 (S.D.N .Y. 1969).
179 , /d. ut 506; (of McQueen v. Druker. 438 F.2d 781 (ht Clr. 1971). The court in Hosty
denied the tenant u temporary injunction against the landlord's eviction action. however, since New
York courU had not yet settled the matter and it was thus not yet clear that. violation wal
thrculened . 299 F. Supp. at 508.
1974]
WARRANTY OF HABITABILITY
775
At least one state court, however, has rejected Hally the constitutional
claim and, presumahly, the defense of retaliation as well. The Hawaii
Supreme Court has held that retaliatory eviction does not infringe upon
the tenant's constitutional rights.'" The court reasoned that even after
the landlord gains possession, a tenant can remain a member of a tenants union and can petition the government for grievances and speak
about the condition of the premises as freely as when the tenant was in
•
IIU
possession.
Whichever basis ·is relied on to allow the defense, it is clear that
the warranty of habitability will be greatly undermined if a landlord can
evict a tenant who has prevailed in a previous eviction action because
of the existence of numerous housing code violations. In Robinson v.
Diamond Housing Corp.,'" the tenant entered into a lease of a Northwest Washington (D.C.) row house with the tacit understanding that the
landlord would repair the numerous defects in the dwelling. When he
failed to do so, the tenant began withholding all rent.'" In the landlord's eviction action for nonpayment, the tenant successfully asserted
the defense of uninhabitability, the validity of which already had been
recognized in Southall.'" The result was that the tenant was allowed to
remain on the premises without paying rent. The landlord then sought
possession on the theory that as a possessor under a void lease, the
tenant was a trespasser. When this theory too was defeated, the landlord
served a 30-day notice to quit, based on the idea that the District of
Columbia Housing Regulations do not compel an owner to rent his
property . The landlord filed an affidavit that he was unwilling to make
the repairs necessary to put the housing in compliance with the housing
~ode and that he presently intended to take the' unit off the rental
market.'" The tenant defended on the ground thl;lt the landlord's eviction was retaliatory and therefore illegal under th~ principles announced
in Edwards. Both the trial and appellate courts ofthe District ofColumbia rejected the defense. The tenant appealed the case to the United
States Court of Appeals for the District of Columbia Circuit.
The real issue, as stated by the circuit court , was whether a landlord
who has been frustrated in his effort to evict a tenant for nonpayment
of rent by a successful assertion of a Southall defense can automatically
180. Aluli v. Tru~.dale. 508 P,2d 1217 (Hawaii 1973),
181. /d. at 1219. The court said that the tenant, being only a month to month tenant, had
nothing hut lin expectancy that the lease would be Clttended an'other month.
IR2 . 463 F.2d 853 (D.C. Cir. 1972).
IR1. Id. ul 858.
IR4. S.. Brown v. Soulhan Realty Co .• 273 A.2d 834 (1968).
IRS. 463 F.2d "' 859.
776
TEXAS TECH LA W REVIEW
[Vol. 5:749
accomplish the same result by serving a 30-day notice to quit.'" The
court reasoned that, the rights protected in Southall and Javins should
not he rendered nugatory by a restrictive reading or Edwards and held
that the tenant must be allowed an opportunity to prove the Edwards
deCense oC retaliatory eviction .'" The cou rt said the question oC whether
the landlord's action is retaliatory is one oC Cact. It thereCore declined
to Cormulate guidelines Cor the circumstances under which a landlord
ma y evict his ten ants when the premises contain unremedied housing
code violations . This Cormulation was lert Cor case-by-case development
hecause the court helieved the matter "best lert to the sound discretion
oC juries under proper instructions."'"
The Robinson decision goes too Car, perhaps, in expanding tenants'
rights. The problem with the result in Robinson is that the landlord is
Corced to retain a tenant who is paying no rent at all, despite the weight
oC authority allowing the landlord the "reason able rental value" oC the
premises. The court, in effect, held that a landlord can never evict a
tenant so long as he is motivated by a desire to rid himselC oC a tenant
who is not paying rent. ". Arguably , this motive will be ever-present once
a tenant first relies on rent abatement. The court recognized the right
oC a landlord to evict a tenant iC some legitimate business justification
reqllired that the unit be taken olf oC the market. The only legitimate
reason the court could come up with, however, is impossibility or unCeasibility oC making repairs . Mere desire to take the unit olfthe market
and unwillingness to repair will not justiCy an eviction.'"
The landlord thus must either repair the building or disinvest. The
landlord who cannot alford repairs must take the property olf the rental
market and possibly eliminate his total means oC livelihood . This result,
while reached under the guise oCtena nts' rights, does nothing to alleviate
the housing shortage, nor does it do much toward improving the conditions oC existing housing. It does, however, greatly inter Cere with the
landlord's property rights . Moreover, in marginal cases any possible
repairs can be made unCeasible by the abatement or all rent, which is
orten the only source oC Cunds Crom which to repair.
x.
CONCLUSION
T.he quest Cor a balance oC the conflicting interests or landlords ~nd
IRfi. 'd. ", 851.
181. 'd.
1RR . 'd. 8M.
189. 'd. ut R65 .
190. 'd. 865·66.
u'
u'
1974)
WARRANTY OF HABITABILITY
777
tenants is over in several jurisdictions. The tenant has been armed with
remedies ror his landlord's railure to provide a habitable dwelling, and
the landlord has been prevented rrom retaliating ror the use or these
remedies . The new law deals effectively with middle- and upper-income
lundlord-tenant relationships, and with certain problems within the
lower-income relationship. As between landlords with dilapidated, lowrent property, and tenants or such slum areas, however, a balance has
not yet been struck, but an impasse has been reached . A tenant can
withhold his rent until his landlord repairs ; a landlord can repair and
raise the rent, in which case the tenant may be rorced to again move
into a derective dwelling unit which he can afford. Or, a landlord can
rail to repair, disinvest his capital, and find alternative ways or making
a living or profit , leaving the tenant in possession or an uninhabitable
dwelling. In neither situation has any real rorward step been taken.
Virginia E. Cochran