HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Thursday, September 15, 2022

Warrantying Health Equity

Heather Payne (Seton Hall University), Jennifer D. Oliva (University of California), Warrantying Health Equity, 70 UCLA L. Rev. (Forthcoming):

The United States is experiencing a significant rise in the prevalence of asthma and other debilitating respiratory and cardiovascular ailments that disproportionately burden low income and marginalized Americans. This is due in large measure to climate change, which is responsible for increasingly devastating air quality events—including wildfires and drought—that trigger these serious health conditions. As a result, it is imperative that we begin to explore potential legal and policy reforms that reign in sources of health-impairing air pollution.

The common law of property has long implied in residential leasing arrangements a warranty guaranteed by landlords to tenants that the premises are habitable. This implied warranty of habitability was adopted to stymie the squalid and unhealthful conditions prevalent in leased housing. While the implied warranty has been traditionally deployed to ensure access to running water and heat and to abate rodent and other residential infestations, it has not been invoked to address poor indoor air quality that can have a significant impact on tenant health and well-being.

North Americans spend nearly 90 percent of their lives indoors and, due to the considerable air pollution generated by typical gas appliances, indoor air quality is often more health harming than polluted outdoor air. Yet, indoor air remains largely unregulated. To address the increasingly poor respiratory health of renters, this Article contends that the use of typical gas appliances in leased spaces violates the implied warranty of habitability and, thereby, the common law of property can be deployed to incentivize landlords to electrify.

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