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The Implied Warranty of Habitability Revisited

A Tract Book Essay

By

Anthony J. Fejfar, J.D., Esq., Coif

© Copyright 2007 by Anthony J. Fejfar

There is an old saying that if something is broken, don’t try to fix it.

Along those lines, I would like to argue that the Implied Warranty of

Habitability in Residential Tenancies is not broken, that it is working just

fine, and should be supported.

The Implied Warranty of Habitability in Residential Tenancies is a

legal doctrine which provides that the Landlord has the duty to keep the

residential leased premises in a habitable condition. In other words, the

Landlord has a duty to make all repairs. Presumably, because the

Landlord is a rational actor, he knows that he must charge enough money in

rent to make sure that there will be a fund available to make any needed

repairs.

I argue that there are two basic reasons for placing the duty of repair

on the Landord. First, the Landlord is in the business of supplying a

dwelling, and as such, owes a natural law duty under the common good to

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ensure that every dwelling renting is capable of being a home. The idea of a

home has intrinsic value.

Second, I argue that the Implied Warranty of Habitability in

Residential Tenancies promotes economic efficiency. In a market where the

duty of repair is uncertain, it is impossible for a knowledgeable prospective

tenant to determine the real value of the apartment. Obviously, if all

apartments come with a full duty of repair, then there is no hidden repair

charge for the tenant. To some degree, then, the apartment becomes a

fungible good. Where uncertainty is involved the tenant cannot ascertain in

advance whether or not there is a hidden repair charge not represented in the

rent. Economic efficiency argues for a uniform duty of repair placed upon

the residential Landlord in every case.