Pennsylvania's Implied Warranty of Habitability

The implied warranty of habitability is probably the most used defense to payment of rent in the residential setting. In Pennsylvania the warranty dates back to 1979, when it was legislated into existence by the Pennsylvania Supreme Court in the case of Pugh v. Holmes. The doctrine quickly became a fixture of the Commonwealth's landlord-tenant law and gave the tenant a new and potentially powerful set of remedies against its landlord.

Tenants frequently misuse the habitability doctrine on the flimsiest of pretexts. However, a residential landlord can take heart from the fact that only a serious defect should result in relief to a tenant. The Holmes court put it this way: "In order to constitute a breach of the warranty, the defect must be of a nature and kind which will prevent the use of the dwelling for its intended purpose to provide premises fit for habitation by its dwellers . . . this means the premises must be safe and sanitary; of course, there is no obligation on the part of the landlord to supply a perfect or aesthetically pleasing dwelling."

The habitability analysis often has a subjective "beauty pageant" feel to it--whether the apartment is fit for habitation is in the eye of the beholder (who is usually a district justice). Some guidance, however, is provided by the judicial record which establishes that the residence contains specific defects that, individually or collectively, may give rise to the breach of the implied warranty of habitability; those defects include lack of heat, broken windows, broken locks, lack of potable water, health code violations, fire code violations, non-functional fire alarms, water intrusion, and mold.

The uses of the implied warranty of habitability are three-fold: it provides a defense to rental payments; it allows a tenant to make repairs and deduct those costs from rent; and it can serve as the basis of a counterclaim against the landlord.

As a defense, the warranty can provide a whole or partial release from payment. If the property is completely uninhabitable, the warranty completely releases the tenant from paying rent; however, if the premises are only partly uninhabitable, a rent abatement is calculated by establishing the percentage of the premises that are uninhabitable and applying that percentage to the rental payment. Whether legally proper or not, the chance to award a partial abatement of rent gives the district justice the opportunity to knock off an amount of rental to achieve what he thinks is fair.

With the "repair and deduct" approach, the tenant makes necessary repairs and then deducts the reasonable costs of such repairs from his rent. Of course, the repair can't be simply an improvement; it has to be a step taken to make the premises healthier, safer or more sanitary and, thus, habitable.

Finally, if the tenant has made a repair and paid the rent in full, he may bring a counterclaim. As in "repair and deduct," the repair must have been for the purpose of making the premises habitable.

In the case of either the "repair and deduct tenant" or the "counterclaiming tenant," any deduction or claim is limited to the amount of the total rental due under the Lease. In both cases, the Tenant must notify the Landlord of the defect and give the Landlord reasonable time to make the repairs.

The bottom line is that a Pennsylvania residential landlord should be aware of the condition of his property at the inception of his lease and should promptly attend to tenant complaints about the premises. The threat of losing rental payments (even if the tenant doesn't vacate) is a real one.

-- Rod Fluck