The Implied Warranty of Habitability Lives: Making Real the Promise of Landlord Tenant Reform

45 Pages Posted: 28 Mar 2017  

Paula A. Franzese

Seton Hall University - School of Law

Abbott Gorin

Independent

David J. Guzik

Seton Hall University - School of Law

Date Written: September 28, 2016

Abstract

The implied warranty of habitability is an implicit promise that every residential landlord makes to provide tenant with premises suitable for basic human dwelling. Tenants can assert breach of the warranty affirmatively, in a suit against landlord for providing substandard housing, but most often assert the breach defensively in the context of landlord’s eviction proceeding against tenant for non-payment of rent. Still, national data suggests that notwithstanding its placement in the firmament of modern landlord-tenant law, few tenants actually assert breach of the implied warranty of habitability, whether affirmatively or defensively. Even in housing markets fraught with substandard rental dwellings, the warranty is underutilized. This Article endeavors to examine that lapse in the context of nonpayment of rent proceedings initiated by landlords in Essex County, New Jersey. Significantly, of the more than 40,000 eviction proceedings brought there in 2014, only 80 tenants asserted breach of the implied warranty of habitability as a defense.

The authors used that field to learn more about the efficacy of the defense and, when raised successfully, its capacity to prompt the remediation of on-site defects. They found that notwithstanding its relative paucity of use, when invoked the implied warranty of habitability can and does work to bring needed repair and improvement to otherwise substandard dwellings. Indeed, in more than half of the cases surveyed the implied warranty of habitability was used successfully to cure housing code violations on leased premises. Moreover, irrespective of whether the defense succeeded or failed the majority of tenants who did assert it stated unequivocally that they would resort to it again if faced with significant on-site infirmities. The warranty deserves an important place in the stock of affirmative actions and defenses available to aggrieved tenants. The considerable challenge is to remove obstacles to its assertion, whether in the form of onerous rent deposit requirements, the absence of centralized databases for courts and rent subsidizing agencies to use when making decisions regarding rent subsidies for substandard premises, the subversive practice of “tenant blacklisting,” the scarcity of effective assistance of counsel or tenants’ lack of awareness of their basic rights.

Keywords: Housing, Affordable Housing, Landlord Tenant Law, Poverty Law, Tenants' Rights, Evictions

Suggested Citation

Franzese, Paula A. and Gorin, Abbott and Guzik, David J., The Implied Warranty of Habitability Lives: Making Real the Promise of Landlord Tenant Reform (September 28, 2016). Rutgers Law Review, Vol. 69, No. 1, 2016; Seton Hall Public Law Research Paper. Available at SSRN: https://ssrn.com/abstract=2942106

Paula A. Franzese (Contact Author)

Seton Hall University - School of Law ( email )

One Newark Center
Newark, NJ 07102-5210
United States
973-642-8817 (Phone)

Abbott Gorin

Independent ( email )

No Address Available

David J. Guzik

Seton Hall University - School of Law

One Newark Center
Newark, NJ 07102-5210
United States

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