The common-law rule, still followed in the majority of jurisdictions, is that unless a lease involves the rental of a furnished dwelling for a very short duration, there is no implied warranty that the rented premises are habitable and generally fit for the tenant to live in. The rule has been expressly predicated on the familiar doctrine of caveat emptor and implicitly predicated on a number of agrarian leasehold assumptions. Commentators have vigorously attacked the rule and have urged its replacement by an implied warranty of habitability. Quite recently, a rapidly increasing number of jurisdictions have reexamined this much-disliked common-law rule and have overturned it in favor of one which provides that in every urban residential lease agreement there is an implied warranty that the rented premises are habitable. Because the implied warranty of habitability is in its initial stages of development, its parameters have yet to be determined by the courts. In Foisy v. Wyman, the Washington Supreme Court joined this growing group of minority jurisdictions in overturning its common-law rule and implying a warranty of habitability in lease agreements. Foisy raises an important new aspect of this developing doctrine. Specifically, does a tenant waive the protection of an implied warranty of habitability where he accepts premises containing substantial patent defects, and where he does so in return for a reduced monthly rent payment? This Note examines this issue and the court's treatment of it.
Timothy J. McDermott,
Waiving the Implied Warranty of Habitability in Residential Leases: Foisy v. Wyman, 83 Wash. 2d 22, 515 P.2d 160 (1973),
53 Neb. L. Rev. 610
Available at: http://digitalcommons.unl.edu/nlr/vol53/iss4/6