Convergence in Contort: Landlord Liability for Defective Premises in Comparative Perspective

Abstract

The American approach to residential landlord liability for defective premises is the result of decades of debate that followed the "revolution" of residential landlord-tenant law – the reconceptualization of the residential lease as a contract and the adoption of the implied warranty of habitability. American jurisdictions have dealt with the problem of contract law's awkward fit with the legally-imposed warranty of habitability by adopting a bifurcated approach to liability: economic harm is compensated in contract; physical injury is compensated in tort. Now that the dust has settled following the landlord-tenant revolution, the time is ripe for assessing whether this bifurcated approach is optimal, or whether an alternative model would better address the needs of residential tenants, who comprise nearly thirty percent of the American population. To that end, this Article undertakes a comparative analysis of the approaches of a number of mixed jurisdictions, with emphasis on South Africa, Scotland, and Louisiana.

Keywords: lease, landlord, tenant, lessor, lessee, contort, warranty against vices and defects, warranty of habitability