The Unwarranted Implication of a Warranty of Fitness in Commercial Leases-An Alternative Approach
The classical landlord-tenant relationship has undergone a substantial transformation since its origin in feudal England. The most recent and far-reaching change has been the emergence of an implied warranty of habitability in residential leases.' An overwhelming majority of jurisdictions recognizes this implied warranty either by statute or judicial decisions or both. These same jurisdictions, however, uniformly have rejected an extension of the underlying rationale to the commercial setting by refusing to imply an analogous warranty of fitness or suitability in nonresidential leases. Consequently, while modern notions of consumer protection have made rapid advances in residential tenancies, commercial lease law continues to be dominated by principles of property which originated in medieval times and have not been altered significantly since that time.'This dichotomy has been criticized by several commentators who see little reason for continuing the distinction between residential and commercial leases. Applying the protections afforded the residential leaseholder to the commercial tenant involves three distinct, yet inter-related, issues. The broadest question is whether an analogous warranty of suitability or fitness should be implied in the commercial setting. A closely related issue concerns the interrelation of the covenants, both express and implied, in the commercial lease. While all nonresidential lease covenants traditionally have been considered independent, one way to expand the tenant's remedies in the commercial field would be to make all lease covenants dependent. Finally, the issue of whether a commercial leaseholder should be able to assert the landlord's material breach of any of these covenants as a defense in a summary action for dispossession must be resolved.
This Note will examine the development of residential lease hold protections in order to isolate the underlying rationales that have prompted judicial and legislative action.
Part II traces the history of residential leases, while Part III sets forth the development of commercial lease law. A close examination of these two areas of lease law reveals that the factors significant in the residential setting are not as compelling in the commercial field. In addition, certain disadvantages that were mildly disquieting in the residential setting have the potential of becoming significantly detrimental in the nonresidential context.'For these reasons, Part IV concludes that a comprehensive extension of residential leasehold protections to the commercial area is unwarranted.
Fred W. Bopp, III,
The Unwarranted Implication of a Warranty of Fitness in Commercial Leases-An Alternative Approach,
41 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol41/iss5/6