COMMENT
The Implied Warranty of Habitability, Foreseeability, and Landlord Liability for Third-Party Criminal Acts Against Tenants
Corey Mostafa* 
54 UCLA L. Rev. 971

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Abstract

Over the past several decades, two of the most significant developments in landlord-tenant law have been the establishment of the implied warranty of habitability and the advent of landlord tort liability for third-party criminal acts against tenants. For the most part, the implied warranty of habitability and landlord liability for third-party criminal acts were created by separate movements. Consequently, the vast majority of courts have predicated landlord liability for third-party criminal acts against tenants on tort law or on contract law principles. However, the Supreme Court of New Jersey in Trentacost v. Brussel established a landlord duty to protect tenants from third-party criminal acts based on the implied warranty of habitability. This Comment argues that the implied warranty of habitability provides a flexible means of establishing landlord liability for third-party criminal acts against tenants. Unlike the tort or contract approaches, the implied warranty of habitability approach is narrowly tailored to landlord-tenant law. However, the implied warranty approach failed to gain the support of courts and commentators in the wake of Trentacost, in large part because the Trentacost court refused to consider foreseeability, thus effectively creating a strict liability standard that was seen as unfair to landlords. This Comment calls for the implied warranty of habitability combined with a foreseeability requirement as an effective, flexible, and fair approach for establishing landlord liability for third-party criminal acts against tenants. The addition of a foreseeability requirement addresses the fairness concerns that undermined the influence of the Trentacost implied warranty of habitability approach.


* Comments Editor, UCLA Law Review, Volume 54. J.D. Candidate, UCLA School of Law, 2007; B.A., University of California, Berkeley, 2004.

2 comments to The Implied Warranty of Habitability, Foreseeability, and Landlord Liability for Third-Party Criminal Acts Against Tenants

  • daphne spanier

    I was wondering if you knew of any cases where the tenant signed an agreement to rent a house “as is.”
    I signed such an agreement 1 1/2 yrs ago. Prior to moving into the rental, I was aware of rodent problems and a leak in the bedroom, and was assured that this would be taken care of. During the winter months, I experienced rodent problems and leaks in the bedroom. I called the landlord who assured me the rodent proofing and leak would be taken care of. The work was inadequate and the problems continued. I then hired my own rodent control and proofing people. The smell of mice urine has ruined the interior wood of one kitchen cupboard-the smell is overwhelming! Rats gained access to the attic, and urinated in the heating duct, which was apparently torn. Consequently, I cannot turn on the heat as the smell is overwhelming and half the heat is lost due to the tear in the heating duct. If that wasn’t enough, the bedroom still leaks when it rains. I later found out that the bedroom extension (where the leaks occur every time it rains) was built without a permit and does not have a foundation-it was built on top of the deck and enclosed. When I complained that the repairs should be fixed by the owner, I was told that it was my responsibility because I agreed to rent the house “As Is.”

    Perhaps this would be a good situation to discuss amongst law students-I would appreciate any advise.
    Thanks,
    Daphne Spanier

  • Corey

    Hi Daphne,

    I am the author of the article. Apologies for the delayed response, I just recently saw your comment. I am sorry to hear about the problems with your rental. It sounds like there is a very good chance you may have a claim for breach of the implied warranty of habitability. As I state in the article, in most jurisdictions the implied warranty of habitability cannot be waived in a residential lease agreement. So the fact that your lease was signed “As Is” should be irrelevant to the question of whether there is a violation of the implied warranty of habitability.

    In addition, sewage problems, persistent leaks, flooded basements, roach problems, and failures to supply heat and hot water are all examples of conditions that courts have considered breaches of the implied warranty.

    In sum, it appears the implied warranty of habitability may very well have been breached in your case. If the implied warranty has been breached, you would have a host of remedies available for breach of contract. These include damages and recission or reformation of the lease agreement. A tenant can also make self-help repairs if the landlord has notice of defective conditions and fails to have them repaired. The cost of such repairs can be offset against future rent payments. Additionally, breach of the implied warranty can serve as an affirmative defense to a landlord’s suit for possession for nonpayment of rent.

    Hopefully this information is helpful for your situation; best of luck!

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