A Fresh Look at Premises Liability as Affected by the Warranty of Habitability

Abstract

For centuries, the law of landlord premises liability was marked by consistency and predictability. Not only were authorities in agreement as to the content of the law, but there was also universal consent as to the underlying rationales. This state of the law, developed in feudal England, was transported to this country and remained basically unchanged until well into the current century.

Recent years, however, have been marked by upheaval and instability. The law of premises liability, once so firmly based on the estate conveyance theory, is no being unsettled by concepts of contract, warranty, negligence, and strict liability. As a result, the landlord in many jurisdictions can no longer rely on traditional immunity but instead must respond to increased duties owing to tenants. In many jurisdictions, courts face a considerable task in defining the scope of these increased duties, since they must struggle to accommodate the various available bases.

This article will present the different positions that the courts have taken during these recent years of experimentation in landlord premises liability, discuss how courts have become muddled in sorting out the various theories, and propose a system of liability that would be fair and soundly based on policy considerations.