By Matthew T. Hovey, Esquire
Most of the clients I meet with who are residential tenants are unaware of the fact that in Pennsylvania they are protected by the Implied Warranty of Habitability. In other words, they are unaware of the fact that their landlord has an obligation to make necessary repairs to the property and if the landlord fails to do so, then the tenant may take steps on their own to remedy the deficiency in the property. These steps may even include the tenant hiring someone to make the repairs and deducting the cost from the rent.
If you, a family member, or a friend are currently renting, or planning to rent in the near future, then I recommend reading on. This week I will provide a three-part series on the Implied Warranty of Habitability. Part I, today’s posting, will explain what the heck the Implied Warranty of Habitability is and provide examples of actionable violations. Part II will explain what someone can do if they are a victim of a violation of the Warranty. Part III will discuss the issue of damages associated with a violation of the Warranty and what you might reasonably expect to recover beyond the cost of any repairs.
Please note, however, that if you, a family member, or a friend are currently being subjected to a violation of the Warranty, I recommend that you immediately call our office and schedule an initial consultation. Violations are serious and the first priority is always to remedy the violation and make your home liveable again. Do not delay.
PART I – WHAT IS THE IMPLIED WARRANTY OF HABITABILITY AND WHAT ARE SOME EXAMPLES OF VIOLATIONS?
Q: WHAT IS AN IMPLIED WARRANTY?
An implied warranty means that it is included in the contract (or lease) regardless of whether it is expressly included in the language of the agreement. In other words, if the warranty is not mentioned anywhere in the lease, it still applies. The seller or the service provider are automatically bound by the warranty. You as the buyer are not required to take any action or include any language in the agreement in order to qualify for the protections of the warranty. You rent, you’re protected.
Q: WHAT IS THE IMPLIED WARRANTY OF HABITABILITY?
The Implied Warranty of Habitability was recognized by the Pennsylvania Supreme Court in 1979 in the decision Pugh v. Holmes, 384 A.2d 1234. At that time, Pennsylvania became the 40th state to adopt this particular implied warranty. It applies to all residential leases. In Pugh, the Supreme Court explained that the Implied Warranty of Habitability requires a landlord to “provide facilities and services vital to the life, health, and safety of the tenant and to the use of the premises for residential purposes.” It provides protections to the tenant that “at a minimum . . . means the premises must be safe and sanitary.”
It does NOT, however, require that the leased property be perfect. It simply requires that the property be safe, sound, and liveable. In other words, if you do not like the color the walls are painted or the presence of non-threatening spider-cracks in the plaster, the Warranty will not apply to you. It’s focus is on the essential necessities of a modern-day home: security, heat, water, absence of electrical and fire-hazards, acceptable plumbing, etc.
Q: CAN MY LANDLORD GET ME TO WAIVE MY RIGHT TO THE IMPLIED WARRANTY OF HABITABILITY?
No. Plain and simple. It is not waivable. [Fair v. Negley, 390 A.2d 240 (Pa. Super. 1978).
Q: HOW DO I KNOW IF A DEFECT VIOLATES THE IMPLIED WARRANTY OF HABITABILITY?
While I like to empower our blog’s readers and provide them ways to manage legal situations on their own, this time the only answer is: contact our office or another attorney. The Supreme Court has not provided an all inclusive list of violations, nor has it provided a clear-cut test for when something needs to be repaired under the Warranty. As a result, it is best to consult with an attorney before taking any action under the Warranty.
The Pennsylvania Courts have provided a list of non-exclusive factors for a judge to consider when determining whether a defect is a violation of the Warranty. These factors include: (a) whether the defect is in violation of applicable Housing Codes, if applicable; (b) the nature and seriousness of the defect; (c) the length of time the defect has existed; (d) the effect of the defect on the safety and sanitation of the property; and (e) the age of the structure. An attorney will be able to determine how these factors apply to your particular defect.
Q: WHAT ARE SOME EXAMPLES OF VIOLATIONS OF THE IMPLIED WARRANTY OF HABITABILITY?
To provide some general guidance, however, below is a list of some of the defects in properties that the court system has recognized as violations of the Implied Warranty of Habitability:
(a) lack of hot water; (b) lack of heat; (c) leaky roof; (d) infestation (cockroaches, mice, and lice); (e) broken steps at the front and back doors to the property; (f) defective wiring; (g) defective windows; (h) overflowing toilets; (i) presence of lead paint; and (j) improper ventilation for a heating system.
Again, if you, a family member, or a friend are currently being subjected to any of these recognized violations of the Warranty or another defect that you believe rises to an equal level of disruption to your ability to live in the apartment, please call our office immediately. Do not delay. Part II will be published on Wednesday, August 4, 2010.