ii. Dependant covenant always implied in every lease
iii. Can be breached either by actual or constructive eviction
c. Constructive Eviction
a) where, through the fault of the LL, there occurs a substantial interference with the tenant's use and enjoyment of the leased premises, so that the tenant can no longer enjoy the premises as the parties contemplated, the tenant may terminate the lease, vacate the premises, and be excused from further rent liability
a) The tenant's use and enjoyment (as distinguished from possession) must be substantially interfered with.
b) Substantial interference is measured objectively; it is what a reasonable person would regard as fundamentally incompatible with the use and enjoyment for which the parties bargained. Does not have to be permanent interference with --- just substantial interference with the use and enjoyment of the premises for the purpose of the lease (Reste -- flooding of basement)
c) Courts consider:
i) the purposes for which the premises were leased
ii) the foreseeability of this type of interference
a) Where the tenant claims constructive eviction for the LL's failure to act, it is necessary that the landlord have some legal duty to act, the breach of which deprives the tenant of use and enjoyment, and thus breaches the covenant of quiet enjoyment
viii. Acts of other tenants
a) General rule -- LL is not responsible for one tenant causing annoyance to another tenant even though the LL can legally control the other tenant's conduct
i) LL has a duty not to permit a nuisance on the premises -- renting to a brothel next door
ii) LL has a duty to control common areas under his control
c) Modern trend -- LL responsible for other tenant's acts if the LL has the legal ability to correct the conditions and fails to do so
ix. Covenant not to compete
a) Convenant by the landlord not to compete with or rent to a competitor of the tenant is usually deemed to be so important to the tenant's enjoyment of the property that the breach of the covenant is treated as a constructive eviction
d. Partial eviction — actual and constructive
i. If there is an actual conviction, even though from a part of the premises only, the tenant is relieved of all liability for rent notwithstanding continued occupation of the balance
a) the LL may not apportion his wrong
b) Restatement rejects this view and says the tenant may receive an abatement but may not withhold all rent
ii. If there is constructive partial eviction, most jurisdictions hold that the tenant is not entitled to withhold rent altogether
e. Illegal Lease Doctrine?
a) does not apply if code violations develop after the making of the lease
b) minor technical violations do not render a lease illegal; nor do violations of which the landlord had neithe actual not constructive notice
c) a tenant under an illegal lease is a tenant at sufference, and the landlord is entitled to the reasonable rental value of the premises, given their condition
f. Does this doctrine only apply for things the LL had a legal duty to do or had promised to in the lease or promised to do orally or through an agent?
2. The Implied Warranty of Habitability
a. Common Law
i. Caveat Lessee
a) the LL's only covenant was to deliver possession
iii. implied warranty of habitability does not apply across the board to all residential leases
a) single family homes may be excluded
b) agricultural leases
c) long term leases?
g. Four Different standards for breach of warranty
i. standards are those of the housing code and apparently any failure to comply with the code is a breach
ii. standards are those of the housing code but substantial compliance is sifficient so long as habitability is unaffected
iii. Housing code and their violation arre compelling but not conclusive. An adequate standard of habitability is required and breach occurs when the premises are uninhabitable in the eyes of a reasonable person with violation of the code provision being a relevant factor
iv. the standard and its breach are independant of the housing code
h. Different ways to calculate the rent reduction and damages
i. Hilder --- damages shall be the difference b/t the value of the dwelling as warranted and the value of the dwelling as it exists in the defective condition --- with the agreed rent as evidence of the fair rental value as warranted
ii. Tenant's damages are the difference b/t the agreed rent and the fair rental value of the premises as tehy were during their occupancy by the tenant in the unsafe or unfit condition
iii. percentage diminution approach --- the agreed rent is reduced by a percentage equal to the % of use lost by the tenant in consequence of the LL's breach
iv. Restatement approach -- see page 535 of text book for an example
a) in the form of injunctive relief against violations of the warranty
b) mentioned in dicta but for the most part ignored by tenants
j. Effect of the warranty of habitability on the price of housing?
i. Increase on the price of housing has both a positive and negative effect
a) Positive -- reflect better housing
b) Negative -- some people will not be able to pay higher rent
k. Jusification for making the warranty inalienable?
i. why don't we allow the tenant and landlord to negotiate a waiver of the warranty and reflect this in the rent?
ii. Problems with waiver?
a) choices -- all or nothing approach?
b) information? people can't accurately compute risks
c) better quality housing?
l. Will this achieve the efficient result?
i. externalities that the LL and tenant would not take into account?
a) foul smell, fire, rats, etc....
b) cost of increased health care?
ii. data is mixed on who bears the cost of the warranty?
m. Retalitory eviction?
i. if this was not outlawed then the reform would be meaningless
ii. Common approach?
a) create a rebuttable presumption of reatalitory purpose if the landlord seeks to terminate a tenancy, increase rent or decrease services within some given period after a good faith complaint or other action by a tenant based on the condition of the premises
b) Beyond the statutory period, the tenant bears the burden of proof with regard to retalitory eviction