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Implied Warranty of Habitability

By Lane V. Erickson, Attorney

A common area of law that involves environmental issues in a landlord tenant relationship is the implied warranty of habitability. This area is frequently contested by tenants when they are being evicted. This is usually done by a tenant as a means of trying to avoid the eviction by offsetting the amount of rent they have failed to pay with the damages they claim are caused by the landlord.

In most cases, but not in all, this argument fails and the eviction goes forward anyway. This is usually the case not because the tenant’s claims aren’t true. Rather, this is usually the case because the tenant has failed to follow the statutory requirements to properly notify the landlord of problems with the property that properly raise the issue of implied warranty of habitability.

Idaho Code § 6-320 is a statutory version of the implied warranty of habitability. Under that section, a landlord can be liable to a tenant for damages for failure to keep the leased premises in good repair, or for any other breach of the lease or rental agreement which materially affects the health and safety of the tenant. To maintain an action for a breach of the implied warranty of habitability, a tenant must show that the landlord failed to do one of the following five things:

  1. Failure to provide waterproofing and weather protection;
  2. Failure to maintain in good working order electrical, plumbing, heating, ventilating, cooling or sanitary facilities;
  3. Maintaining the premises in a manner hazardous to the health or safety of the tenant;
  4. Failure to return a security deposit as and when required by law; or
  5. Breach of any term or provision of the lease or rental agreement that materially affects the health and safety of the tenant.

However, just claiming that one or more of these things has occurred is not enough. The statute also specifically provides that certain procedural steps must be taken by the tenant to properly raise a claim for breach of implied warranty of habitability. The procedural requirement under Idaho Code § 6-320 that we are concerned with here is that the tenant give the landlord three days’ written notice requiring him to cure the defects before suit can be filed or a claim for breach of implied warranty of habitability can be raised in an eviction proceeding. Worden v. Ordway, 105 Idaho 719, 721-722 (Idaho 1983).

When a landlord receives a written notice from a tenant of any problem that exists with the leased property, the landlord should immediately act to fix the problem. His failure to act may lead to a situation where the tenant does not have to pay the full rent that is due under the terms of the lease agreement. Additionally, and perhaps more importantly, if written notice is given by a tenant and the landlord fails to remedy the complained of problems, the landlord may not be able to evict this tenant for other legitimate reasons.

While the instances under Idaho law where the tenant has successfully raised the argument of breach of implied warranty of habitability are rare, they do exist. Despite this, it is very common for tenants to raise this argument in eviction proceedings. For this reason, it is a wise landlord who keeps good records of any written notes, letters, or the like that he receives from a tenant as well as a record of the actions that were taken by the landlord after receiving such a written notice.

Call us toll free at 877-232-6101 or 208-232-6101 for a consultation with Lane Erickson and the Racine Olson team of Landlord and Tenant Law and Real Estate attorneys in Idaho. You can also email Lane Erickson directly at We will answer your Idaho Landlord and Tenant Law and Real Estate questions and will help you solve your Idaho Landlord and Tenant Law and Real Estate needs.

This website includes general information about legal issues and developments in the law. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and must not be taken, as legal advice on any particular set of facts or circumstances. You need to contact a lawyer for advice on specific legal issues.

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