Thursday, March 30, 2017

Franzese, Gorin, and Guzik on Landlord-Tenant Law and the Warranty of Habitability

Paula A. Franzese (Seton Hall), Abott Gorin (Essex-Newark Legal Services), and David J. Guzik (Seton Hall-law student) have posted The Implied Warranty of Habitability Lives: Making Real the Promise of Landlord Tenant Reform (Rutgers Law Review) on SSRN. Here's the abstract:

The implied warranty of habitability is an implicit promise that every residential landlord makes to provide tenant with premises suitable for basic human dwelling. Tenants can assert breach of the warranty affirmatively, in a suit against landlord for providing substandard housing, but most often assert the breach defensively in the context of landlord’s eviction proceeding against tenant for non-payment of rent. Still, national data suggests that notwithstanding its placement in the firmament of modern landlord-tenant law, few tenants actually assert breach of the implied warranty of habitability, whether affirmatively or defensively. Even in housing markets fraught with substandard rental dwellings, the warranty is underutilized. This Article endeavors to examine that lapse in the context of nonpayment of rent proceedings initiated by landlords in Essex County, New Jersey. Significantly, of the more than 40,000 eviction proceedings brought there in 2014, only 80 tenants asserted breach of the implied warranty of habitability as a defense. 

The authors used that field to learn more about the efficacy of the defense and, when raised successfully, its capacity to prompt the remediation of on-site defects. They found that notwithstanding its relative paucity of use, when invoked the implied warranty of habitability can and does work to bring needed repair and improvement to otherwise substandard dwellings. Indeed, in more than half of the cases surveyed the implied warranty of habitability was used successfully to cure housing code violations on leased premises. Moreover, irrespective of whether the defense succeeded or failed the majority of tenants who did assert it stated unequivocally that they would resort to it again if faced with significant on-site infirmities. The warranty deserves an important place in the stock of affirmative actions and defenses available to aggrieved tenants. The considerable challenge is to remove obstacles to its assertion, whether in the form of onerous rent deposit requirements, the absence of centralized databases for courts and rent subsidizing agencies to use when making decisions regarding rent subsidies for substandard premises, the subversive practice of “tenant blacklisting,” the scarcity of effective assistance of counsel or tenants’ lack of awareness of their basic rights.

What makes the work of these scholars particularly interesting is that it has resulted in actual legislation! As a result of this research, in 2017 the New Jersey legislature introduced Act 4610 (which codifies and enhances the use of breach of the implied warranty of habitability as a defense to certain eviction actions) and Act 4612 (which establishes the confidentiality of landlord-tenant court records and addresses adverse actions on rental applications). The authors and their research have been featured on All Things Considered on NPR/BBC/WNYC Radio and in The Star Ledger. Nice work!

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