A Rush to Fill the Void: Legislation and Case Law on Warranties of Habitability

Publication year1992
CitationVol. 5 No. 7 Pg. 7
A Rush to Fill the Void: Legislation and Case Law on Warranties of Habitability
Vol. 5 No. 7 Pg. 7
Utah Bar Journal
September, 1992

August, 1992

Gretta C. Spendlove and Kathryn O. Balmforth Partners, Wood and Wood, J.

The Utah Bar Journal last visited the topic of the implied warranty of habitability in 1990.[1] At that time, the Journal described the opinion of the Utah Court of Appeals in P.H. Investment v. Oliver, [2] in which the court recognized that Utah had not established a warranty of habitability in residential leases. The court asserted that this area of the law "badly need[ed] reform" and was "exceptionally senseless and anachronistic."[3] The Court of Appeals, however, refrained from establishing such a warranty for a number of policy reasons. The court worried that it would be unable to draft a coherent policy or to fully assess the economic impact of such a warranty based solely on the record before it.[4] Instead, the court invited the legislature to act.

In the intervening two years, legislative bodies and the courts have rushed to fill the void. First, the Utah Legislature enacted the Utah Fit Premises Act.[5] Then, the Utah Supreme Court, apparently less inhibited by policy concerns than the Court of Appeals, recognized a common-law implied warranty of habitability.[6] Finally, the Salt Lake City Council has adopted its own Fit Premises ordinance.[7]

The Utah Fit Premises Act

While the Fit Premises Act does not use the term "warranty of habitability, " its clear purpose is the same - to eliminate the doctrine of caveat emptor in landlord/tenant transactions[8] and require landlords to maintain rental units "in a condition fit for human habitation."[9] By its terms, the Act applies only to residential rental property.[10]

The Act requires landlords to comply with applicable local building ordinances and health regulations, [11] and to rent only premises which are "safe, sanitary, and fit for human occupancy."[12] The Act does not, however, apply to defects in the rental units "which do not materially affect the physical health or safety of the ordinary renter."[13] The landlord must provide and maintain electrical systems, plumbing, heating and hot and cold water, provide garbage receptacles and removal if a building contains two or more rental units, and maintain common areas in a "sanitary and safe condition.[14]Landlords are not responsible for repair of damages caused by the tenant or his family, guests or invitees.[15]

The Act also places various duties on tenants. The tenant has a general duty to cooperate with the landlord in maintaining the property in compliance with the Act.[16] The tenant must be current on all rental payments and comply with "all appropriate requirements" of his rental agreement. Other specific duties of the tenant include maintaining the premises in a safe and sanitary manner, occupying the unit in the manner for which it was designed, " and using the electrical, plumbing, sanitary and heating facilities, as well as other facilities and appliances "in a reasonable manner." The tenant must also refrain from "unreasonably burden[ing]" the common areas, damaging the unit, and interfering with the peaceful enjoyment of other renters.[17]

The tenant's remedy for a landlord's noncompliance with the Act is to commence a summary court action in which he may recover damages, rescind the lease, and obtain injunctive relief. Damages "include rent improperly retained or collected, " but are not specifically limited to those items.[18] The Act specifically disallows damages for mental suffering or anguish.[19] The prevailing party is awarded attorney fees.[20]

The renter may not employ self-help by withholding rents, because he is required to be current on rent and to be in compliance with all his other obligations under the Act before he may bring an action for relief.[21] Presumably, this requirement would bar a tenant from raising the Fit Premises Act as a defense in an action for unlawful detainer based on failure to pay rent or to comply with some other contractual obligation.

Before commencing an action under the Fit Premises Act, the tenant is required to give written notice to the landlord of the problem within a "reasonable time, " the tenant must "serve" a second written notice on the landlord, making known the tenant's intention to commence an action if the premises are not repaired within three days.

The Act allows a landlord to elect not to bring a unit into compliance, but instead to terminate the rental agreement "if the unit is unfit for occupancy."[22] The Act also permits the landlord and tenant to agree to reallocate their statutory duties by "explicit written agreement signed by the parties."[23] While this provision has been interpreted to allow "as is" rental agreements, [24] the Act does not by its terms allow waiver of the requirement that all rental units be habitable. Thus, this provision could be interpreted to only allow I a tenant to assume the obligation to make the rental units habitable.

The Act drew prompt criticism as being too pro-landlord.[25] Specifically, the Act has been criticized because it does not allow tenants to make repairs and deduct repair costs from rent payments, because it places too many conditions upon a tenant's right to bring suit by requiring the tenant to be in compliance with all his duties under the Act before he can seek relief, because it requires the...

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