The “As-Is” Clause in a Residential Lease

The “As-Is” Clause in a Residential Lease


Is an “As-Is” clause in a residential lease in Pennsylvania enforceable? That is a question that comes up any time a tenant is injured in a rental property and attempts to sue the landlord. Landlords will commonly include an “As-Is” clause in the lease. The “As-Is” clause generally says that the tenant accepts the property “As-Is”. The landlord argues that the tenant accepted any dangerous conditions on the property. The landlord will then use the “As-Is” clause in litigation to argue the tenant cannot sue the landlord.

There are many reasons why this should be unenforceable.

Pennsylvania has refused to enforce “As-Is” clauses in residential leases

Pennsylvania has recognized that “As-Is” clauses in residential leases are unconscionable and unenforceable as an attempt to waive the implied warranty of habitability. In re Gerst, 106 B.R. 429, 433 (Bankr. E.D. Pa. 1989), citing Pugh v. Holmes, 486 Pa. 272, 285-88, 405 A.2d 897, 905-07 (1979); and Fair v. Negley, 257 Pa. Super. 50, 55-60, 390 A.2d 240, 243-45 (1978).

In Fair v. Negley, the Court stated, “considering the bases for our decision in Pugh v. Holmes, the public policy sought to be advanced by the implied warranty of habitability, and the factors to be employed in determining whether an agreement violates public policy, we can conclude only that an attempted waiver of the implied warranty of habitability in residential leases is unconscionable and must be held to be ineffective.” Fair, at 245.

Pennsylvania Courts have held that tenants do not have bargaining power equal to that of their prospective landlords. The Court refused to enforce “As-Is” clauses in residential leases. This helps to level the playing field between tenants and landlords. See Santiago v. Truitt, 23 Pa. D. & C.3d 313, 316 (C.P. 1982), citing Galligan v. Arovitch, 421 Pa. 301, 219 A. 2d 463 (1979); Spallone v. Siegel, 239 Pa. Superior Ct. 586, 362 A. 2d 263, 265-273 (1976). (Spaeth, J. concurring) and cases cited therein. (1966); Pugh v. Holmes, 486 Pa. 272, 405 A. 2d 897. See also Gilpin v. Abraham, 218 F. Supp. 414 (E.D. Pa. 1963) and Boyd v. Smith, 372 Pa. 306, 94 A.2d 44(1953).

What is the Implied Warranty of Habitability?

The Court often reasoned that “As-Is” clauses are unenforceable because they seek to waive the implied warranty of habitability. So what is this warranty?

Pennsylvania recognizes an implied warranty of habitability. This is a warranty that a landlord must provide a tenant with a property that is safe and fit for human habitation. This implied warranty cannot be waived. It attaches to every residential realty lease in Pennsylvania. In re Gerst, 106 B.R. 429, 433 (Bankr. E.D. Pa. 1989), citing Pugh v. Holmes, 486 Pa. 272, 285-88, 405 A.2d 897, 905-07 (1979); and Fair v. Negley, 257 Pa. Super. 50, 55-60, 390 A.2d 240, 243-45 (1978).

In other words, a landlord cannot provide a tenant with a property that is unsafe or is not fit for human habitation. Also, a landlord cannot force a tenant to accept a leased property that is unsafe or is not fit for people to live. A landlord cannot force a tenant to waive this warranty.

The implied warranty of habitability is designed to ensure that a landlord will provide facilities and services vital to the life, health, and safety of the tenant and to the use of the premises for residential purposes. This warranty applied both at the beginning of the lease and throughout its duration. Pugh, at 905-906.

A tenant can bring an action against a landlord for a breach of this warranty. To assert a breach of the implied warranty of habitability, a tenant must prove he or she gave notice to the landlord of the defect or condition, that the landlord had a reasonable opportunity to make the necessary repairs, and that the landlord failed to do so. Id. Without the implied warranty of habitability, tenants would be powerless to fight landlords who rented housing that was unsafe and unfit for human habitation.

The breach of an implied warranty of habitability can also be useful when examining whether a landlord may be responsible for a tenant’s physical injuries sustained on the leased property. There can be challenges withholding certain landlords responsible, so having an experienced attorney is important. We have this experience. Attorney John Mattiacci has successfully litigated cases against landlords who have breached this warranty.

We have successfully sued landlords who have breached this warranty

John Mattiacci has successfully sued landlords who have not provided safe rental properties to tenants. If you or a family member has been injured on a rental property, contact the firm with experience in handling premises liability cases against landlords. Contact Philadelphia personal injury lawyer John Mattiacci today for a free consultation.

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