The Implied Warranty of Habitability In Residential Leases

Many residential leases provide that the leased premises are either taken in “as is” condition or are silent as to condition. When no reference is made to the condition, the presumption is that the tenant has inspected the leased premises and has accepted the premises in its current state. Does this mean that the tenant is out of luck if it turns out the heating system is 70 years old and breaks down every winter? Must the tenant live in a freezing apartment in the middle of winter if the landlord chooses to delay repairs to avoid extra costs? The answer is no.

In the past, the principle of “caveat emptor” (buyer beware) applied to residential leases, and the tenant had little recourse when the landlord failed to provide hot water, heat or sanitary living conditions. Fortunately, Pennsylvania has since held that caveat emptor (or, more appropriately, “caveat lessee”) is no longer applicable to residential leases and that an implied warranty of habitability will apply to all such leases. The implied warranty of habitability in residential leases is designed to insure that a landlord will provide necessary services and facilities for the life, health and safety of the tenant and for the use of premises as a residence. Furthermore, any purported waivers of the implied warranty contained in the lease are in violation of public policy and are ineffective because such waivers would be counter to statutory and regulatory provisions concerning public health and safety.

Among those factors the court will consider in determining whether there is a material breach of implied warranty of habitability in a residential lease are: (i) whether the condition violates a housing law, regulation or ordinance; (ii) the nature and seriousness of the defect; (iii) the effect of the defect on safety and sanitation; (iv) the length of time for which condition has continued; and (v) the age of the building.

In order to constitute a breach of the implied warranty of habitability in residential leases, the defect must be such that the premises are rendered unsafe or unsanitary and therefore unfit for living.

Although the landlord has the duty to repair damages caused by normal wear and tear, if the tenant causes the damage willfully or through unusual use, the tenant will be liable for the cost of the repairs. Also, while the tenant is entitled to a safe and healthy place to live, he or she is not entitled to a “perfect” home.

So what can a tenant do if the landlord breaches the implied warranty? Until the premises are returned to a habitable state, the tenant may seek rent reduction for the difference between the agreed upon rent and the fair rental value of the apartment in its present condition. Other alternatives include seeking a rent reduction for the amount spent by the tenant on reasonable repairs to make the dwelling habitable or, if tenant chooses to surrender possession of the premises, the rent may be discharged altogether.

The tenant may also assert a breach of the implied warranty as a defense or as a counterclaim against a landlord’s action for possession or for unpaid rent. In order to assert such a defense or counterclaim, the tenant would have to prove that he or she gave notice to the landlord of the defect or condition (preferably in writing) and that the landlord had a reasonable opportunity to correct the condition and failed to do so. If the court determines that tenant’s entire obligation to pay rent is suspended by a landlord’s total breach of warranty, an action for possession of the leased premises would fail because, in effect, there is no unpaid rent.

And finally, the courts in Pennsylvania have held that a tenant may bring a private action against a landlord for unfair or deceptive practices under the Unfair Trade Practices and Consumer Protection Law, and the court may, in its discretion, award up to three times the actual damages sustained by the tenant, plus attorneys’ fees.

— Denise Ciampitti