Daily Development for
Tuesday, July 2, 1996

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

LANDLORD/TENANT; RESIDENTIAL; IMPLIED WARRANTY OF HABITABILITY: Implied warranty of habitability does not require that premises be maintained in accordance with reasonable expectations of tenant, but sets forth minimum standards to protect tenants against conditions that render residential premises uninhabitable.

Solow v. Wellner, 635 N.Y.S.2d 132 (Ct. App. 1995).

The plaintiffs were tenants of a luxury high-rise apartment building. The promised amenities failed to materialize and the plaintiffs withheld rent based on breach of the warranty of habitability. The court determined that the failure to receive all of the amenities appurtenant to the luxury nature of the building did not warrant a breach of the warranty of habitability and accordingly, plaintiff tenants were not entitled to rent abatements.

New York has a statutory implied warranty of habitability that requires that "the premises. . . and all areas used in connection therewith in common with other tenants . . . are fit for human habitation and for the uses reasonably intended by the parties and that the occupants . . . shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety."

The court comments that the purpose of the statute was to provide an objective standard for habitability. The court below had read the standard as requiring compliance with the rental agreement, as this would guarantee that the premises would be "fit . . . for the uses reasonably intended by the parties" as required by the statute. The Court of Appeals disagreed, however.

"[T]he implied warranty of habitability sets forth a minimum standard to protect tenants against conditions that render residential premises uninhabitable or unusable. Thus, the stautory reference to `uses reasonably intended by the parties,' rather than referring to a broad spectrum of expectations arising out of the parties' specific contractural arrangement, reflects the Legislatures concern that tenants be provided with premises suitable for residential habitations, in orhter owrds, living quarters have `those essential functions which a residence is expected to provide.'" 635 N.Y.S.2d At 135 (citations omitted).

Comment: Generally speaking, the warranty of habitability remedies do apply to express warranties of quality that are included in the contract, but only to the extent that breaches affect habitability. But what is habitability? For instance, a landlord probably does not have a duty to provide air conditioning as part of the implied warranty of habitability. Some apartments that do have air conditioning are so designed as to be uninhabitable without it, but this might be said of some renovated older buildings, which still have the possibility of opening windows and cross-ventilation. In such a case, if the landlord had agreed by contract to provide air conditioning, would the failure to do so amount to a habitability defect?

Comment 2: Compare this somewhat conservative interpretation of the implied warranty with the very broad application in a different context in a lower New York appeals court case embodied in yesterday's Daily Development.

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