c. The Implied Warranty of Habitability says that a landlord makes a covenant to the tenant that the leased premises will be suitable for habitation, even if the lease does not expressly provide the warranty.
i. Common Law Rule was that there were no implied warranties of habitability
ii. Modern View is that the landlord that rents dwellings for purposes of habitation has a duty to provide a habitable dwelling and warrant that the dwelling is habitable.
1. The implied warranty of habitability arises under contract principles
2. Can’t be waived by parties
3. Factors for breach determination
a. Impact on the safety or health of the tenant
b. Substantial violation of the building code is prima facie evidence
4. Necessity for modern rule
a. Relative bargaining positions of the tenant and landlord
b. Modern tenant not qualified to make complex repairs
c. Landlord better suited to make complex repairs
5. Requirements for tenant to recover after landlord breach
a. Tenant must give notice of defect and landlord must not complete repairs
b. Defect must exist at time rent withheld
6. Types of recovery available to tenant
a. Withholding rent from landlord
b. May deduct cost of repairs made by tenant from rent
7. Problems with modern view
a. Govt. should not be able to mandate terms of residential contracts
b. Landlords pass on the costs of implied warranties
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