Daily Development for Friday, August 17, 2007
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

LANDLORD/TENANT; RESIDENTIAL; IMPLIED WARRANTY OF HABITABILLITY; TORT CLAIMS: Virginia decides that there is no tort remedy for breaches\ of implied warranty as defined in Virginia version of the Uniform Residential Landlord/Tenant Act.

Isbell v. Commercial Investment Assoc. Inc., 644 SE 2d 72 (Va. 2007)

Tenant allegedly suffered injuries as a consequence of stairs within her living unit that were in poor repair.  Tenant sued landlord in tort for personal injuries,  alleging that the landlord had a duty to maintain the premises in good repair during the term of the tenancy, and that the landlords failure to so maintain the premises led to the injury. 

As the court noted, the landlord has no duty at common law to maintain a premises in good repair after letting.  But the tenant alleged that this duty arose as a consequence of Virginias adoption of the Uniform Residential Landlord/Tenant Act.  This Act imposes on the landlord many responsibilities with respect to maintenance of the premises - a statutory version of the common law Cimplied warranty of habitability adopted in some other states.

The court stated that there is nothing in the Virginia legislation expressly giving a tort remedy for personal injuries as a consequence of a landlords failure to maintain a residential premises.  It concluded that there was no basis for inferring an intent on the part of the legislature that such a remedy ought to exist. 

Particularly at issue were the provisions of Virginia Code Sec. 55-248.40, which provides that damages were available in connection with an award of an injunction.  Tenant argued that the statutory recognition of damages here demonstrated that the legislature did see fit to permit personal injury damages a s a consequence of breaches of the implied warranty.  The court instead read the section to permit only contractual damages for breach of the implied contract remedies made available to the tenant under the Act.  Thus, if the premises are in disrepair, the tenant can obtain damages for breach of contract for an unsatisfactory premises, but cannot obtain personal injury damages.   The court noted also that the tenant in this case had not sought an injunction anyway, since it had already moved out. 

Comment 1: Friedman on Leases (Randolph edition) discusses the issue in Section 10:1.6.  The editor acknowledges that the editing in that section is unsatisfactory and hell clean it up in the next supplement, due out around Thanksgiving.  But the editor also has included at the end of chapter 10 in Friedman a state by state analysis on various implied warranty issues, including the availability of tort damages.  Again, this appendix will be reworked as a consequence of this decision and a few others.

Comment 2: The implied warranty of habitability is a non-waivable duty arising as a consequence of a landlord entering into a landlord-tenant relationship.  The reasons for refashioning this relationship go beyond ordinary tort theory, and it is no surprising that courts would follow to their logical end  the logical ramifications of the duty established under the implied warranty. 

Comment 3:  The case also is significant because the Uniform LL/T Act has been enacted in many states - as many as 30, the editor believes, and consequently the impact of this construction of the Act is significant.  In states where the courts had already changed the common law to impose an implied warranty duty on landlord, a court might be more likely to find in such duty a tort duty as well.

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