This article advances the premise that the hybrid contract-property model of leases may be appropriate to provide flexible choices for many areas of landlord-tenant law and, perhaps, may be suitable as a general model, but that it has failed as applied to the question of the tenant's remedies for breach of the warranty of habitability. As applied to remedies, the contract-property hybrid is a false dichotomy, or perhaps more accurately, the wrong dichotomy. The proper analysis of tenant remedies when the landlord breaches the habitability duty requires that a line be drawn between the tort duties and the contract duties that the landlord owes to the tenant.'0 That line should be based upon whether the particular habitability duty in question is waivable by the tenant. Such differentiation of tort and contract elements of habitability clarifies remedies by focusing the inquiry on what type of interest is to be protected: a tenant's expectation of habitable premises secured by contract, or a right to habitable premises imposed as a matter of public policy and protected under tort principles. Recognition of a tort action for the second situation permits the fashioning of damage rules that neither overcompensate nor undercompensate for the tenant's injury. One principal benefit of the use of tort remedies lies in the analysis of non-economic damages-when, for example, the tenant claims mental distress stemming from a habitability failure.
Smith, Jim, "Tenant Remedies for Breach of Habitability: Tort Dimensions Of a Contract Concept" (1987). Scholarly Works. Paper 841.