Forty (Plus) Years After the Revolution: Observations on the Implied Warranty of Habitability

The implied warranty of habitability has been called the “most prominent result” of the revolution in tenant rights that arose in the 1960s and 1970s. How has the revolution fared after forty-plus years? How have courts responded to the shift from examining the landlord-tenant relationship under the doctrines of contract in the place of property law? This article examines some of the issues that courts are addressing today with regard to the implied warranty of habitability. The article will begin with a historical discussion of the warranty’s rise to provide context for how truly revolutionary its adoption was. Then, jumping forward, cases addressing the implied warranty over the last twelve years will be examined to provide context to discuss unresolved questions that remain. The purpose of this article is to provide a snapshot of the state of the implied warranty today, so that when soldiers fighting in the landlord-tenant revolution forty years from now look back, they have some understanding of how the battle lines of this generation were drawn