ABA Family Legal Guide

Renting Residential Property

Maintaining Rental Property

What is the implied warranty of habitability?

The implied warranty of habitability is an unwritten promise that the landlord will maintain the apartment in the condition required by the housing code and will make the repairs necessary to keep the apartment in that condition. The unwritten promise exists because the courts have ruled that all landlords have made that implied promise to their tenants.

Since the late 1960s, courts in nearly all states have ruled that the lease of every residential tenant contains an implied (that is, unwritten but understood) warranty that the property was in good condition and the landlord would keep it that way. Lease clauses in which the tenant waives the right to maintenance have been declared illegal and unenforceable in almost all the states. By passing laws requiring the landlord to maintain the property, state legislatures and municipalities have also created the standard of maintenance required by the implied warranty.

The implied warranty of habitability requires substantial compliance by the landlord. Thus, the landlord does not have to correct every building code violation to satisfy the warranty.

If the landlord breaches the implied warranty of habitability, the tenant will probably have the right to withhold from the regular contract rent an amount that reasonably reflects the reduction in value of the apartment by the presence of the code violations. The landlord's breach will also give the tenant the right to sue the landlord for the overpayment of rent if the tenant paid the full contract rent in spite of the presence of code violations. And the landlord's breach will give the tenant a defense against an attempt by the landlord to evict the tenant if the tenant does not pay the full contract rent.