Property II- Davidson- Spring 2006- Righetti

Property II- Davidson- Spring 2006- Righetti - REGULTING...

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REGULTING RENTAL HOUSING I) THE IMPLIED WARRANTY OF HABITABILITY A) COMMON LAW: The landlord will deliver over and maintain throughout the tenancy premises that are safe, clean and fit for human habitation. i) No assumption of risk. Knowledge of defect doesn’t waive warranty. ii) Cannot be waived through written provision in lease or oral agreement (except in a few limited jurisdictions with showing of equal bargaining power) iii) Breach occurs where the premises are uninhabitable in the eyes of a reasonable person. Major violations of housing code may be prima facie evidence of breach (this not determinative as they may be over/under inclusive but is worth a look. iv) Does NOT include defects caused by the tenant or amenities (may be contract claim for amenities) v) includes Patent and latent defects B) PURPOSE: i) resources: housing code violations are under enforced ii) it changes the nature of the landlord tenant relationship (give tenant power to withhold) iii) remedies of housing code/implied warranty overlap C) ELEMENTS OF A CAUSE OF ACTION i) tenant must notify landlord of defect ii) landlord fails to correct in a reasonable time iii) defect exists within time for which rent was withheld (in an action for ejectment for nonpayment of rent filed by landlord with warranty as defense) iv) Defect(s) impact health and safety (e.g. sewage, constant loud noise, failure of AC) D) REMEDIES (can be an affirmative cause of action or a defense for withheld rent) i) rescission, reformation, damages (contract) (a) DAMAGES: COMPENSATORY: measure is difference in value of dwelling as warranted and as it exists or between agreed rent and fair rental value. Damages for rent previously paid. In some jurisdictions tenant can assert cause of action, terminate lease and sue for damages. Hilder v. St. Peter : rental value reduced for disrepair, P awarded damages + full rent paid even though P never vacated. PERCENTAGE-DIMINUTION APPROACH: agreed rent is reduced by percentage equal to the percent of lease-value lost by the tenant in consequence of the landlords breach. PUNITIVE: may be available (rarely for breach of contract) where breach is of such a willful and wanton or fraudulent nature as to make exemplary damages appropriate. ii) WITHOLD RENT: tenant can withhold payment of future rents until defect is corrected (runs risk of losing case, being ejected or forced to pay rent during period) iii) tenant can self-repair defect and deduct the expense from future rents iv) Tenant does not need to abandon possession to bring case E) NOTES: i) implied warranty not adopted by all jurisdictions ii) does not replace or render moot quiet enjoyment, constructive eviction, illegal leases
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iii) Does not usually extend to commercial leases (which use implied warranty of fitness or suitability for purpose) iv) FORCE MAJURE: acts of god or the acts of others (subcontractors/sanitation workers): generally no defense.
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Property II- Davidson- Spring 2006- Righetti - REGULTING...

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