The Rise and Fall of the Implied Warranty of Habitability

Abstract

Growing concern about poverty in the late 1960s produced two sweeping legal revolutions. One gave welfare recipients rights against arbitrary eligibility rules and benefit terminations. The other gave low-income tenants recourse when landlords failed to repair their homes. The 1996 welfare law exposed the welfare rights revolution's frailty. Little-noticed by legal scholars, the tenants' rights revolution also has failed, and for broadly similar reasons.Withholding rent deliberately to challenge landlords' failure to repair is unduly risky for most tenants in ill-maintained dwellings: either moving to better housing is a better option or the risk of retaliation is too great. The implied warranty could still motivate landlords to repair if it limited evictions of low-income tenants who fall behind on their rent for other reasons, but a set of little-noticed doctrines deemed these tenants unworthy to claim the warranty's protection. Moreover, reformers left implementation to courts with neither the resources not the inclination to transform landlord-tenant relations.None of this was inevitable. The doctrines effectively limiting the warranty to deliberate rent withholding have weak justificiations. And contemporaneous procedural innovation in other areas of law offered alternatives to the unresponsive courts.More daunting was the transformation of the housing market. Fewer low-income tenants live in decrepit dwellings, but many suffer housing problems whose consequences may be even more severe: overcrowding, locations remote from jobs and good schools, and rents that crowd other necessities from their budgets. Looking at a clear, unified purpose, the tenants' rights revolution cannot begin to adapt to these changes.