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10 Loy. U. Chi. L.J. 41 (1978-1979)
Non-Waiver of the Implied Warranty of Habitability in Residential Leases

handle is hein.journals/luclj10 and id is 51 raw text is: Non-Waiver of the Implied Warranty of Habitability in Residential Leases KATHERYN M. DUTENHAVER* INTRODUCTION TENANT AGREES THAT NO REPRESENTATIONS, WAR- RANTIES (EXPRESSED OR IMPLIED) OR COVENANTS WITH RESPECT TO THE CONDITION, MAINTENANCE OR IMPROVEMENTS OF THE APARTMENT, BUILDING, OR OTHER AREAS HAVE BEEN MADE TO TENANT EXCEPT THOSE CONTAINED IN THIS LEASE, THE APPLICATION, OR OTHERWISE IN WRITING SIGNED BY THE LESSOR.' Under common law principles, a landlord had no duty to place or maintain premises in a habitable condition. As transferee of a less-than-freehold estate, a tenant was treated as an owner and was given the rights and duties of ownership for the agreed upon term: the right of exclusive possession and the concomitant duties to pay rent and not to commit waste.' The transfer was considered a con- veyance of land and the property principle of caveat emptor was applicable. A tenant had to rely on his own inspection and his own judgement. There were no implied warranties relating to the condi- tion of the premises. The only covenant implied by operation of law to the landlord was that of quiet enjoyment. Once the right to pos- session was delivered, a landlord had fully performed all legal obli- gations, and the only continuing duty was to refrain from interfering with the tenants peaceable enjoyment of the premises.3 Thirty-seven jurisdictions have now departed from the common law interpretation of the landlord-tenant relationship and have dis- carded to a considerable extent the application of the doctrine caveat emptor.' This departure has taken various forms. Twenty- * Associate Dean and Associate Professor of Law, De Paul University, B.A., North Central College, 1960; J.D., De Paul University, 1972. 1. Chicago Real Estate Board, Apartment Lease No. 15 § 6A (1974). 2. A tenant could not use the premises so as to substantially injure the reversion. A violation of this duty was considered waste. 1 AMmuCAN LAw OF PRoPmRY § 3.39 (A.J. Casner ed. 1952). See Turman v. Safeway Stores, 132 Mont. 273, 279, 317 P.2d 302, 306 (1957). 3. See Harms v. McCormick, 132 Ill. 104, 22 N.E. 511 (1889); 1 AMmuCAN LAW OF PRoPErrY § 3.47 (A.J. Casner ed. 1952); 7 Holdsworth, History of English Law 255 (2d ed. 1937). But see Siegel, Is the Modern Lease a Contract or a Conveyance?-A Historical Inquiry, 52 J. URB. L. 649 (1975). 4. These jurisdictions are: Alaska, Arizona, California, Connecticut, Delaware, District of Columbia, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska,

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