Landlords’ Responsibilities Under the Implied Warranty of Habitability and the Covenant of Quiet Enjoyment Extend to Hurricane-Caused Damage

68 Am. U. L. Rev. F. 91 (2019).

* Editor-in-Chief, American University Law Review, Volume 69; J.D. Candidate, May 2020, American University Washington College of Law; B.A., English and Environmental Studies, 2015, Williams College. I would like to thank the entire Law Review editorial team for their dedicated efforts preparing this piece for publication. I would also like to thank my faculty advisor, Professor Bill Snape, for his unwavering support and guidance throughout the drafting process. Finally, I would like to thank my family. It is with their unconditional love and support that I have been able to pursue and achieve my academic and professional goals.

Rising global temperatures have caused hurricanes to grow in size, intensity, and frequency. For many coastal cities, hurricanes have become an expected or customary event. In 2017, Hurricane Harvey hit the Texas coast and decimated communities. A year later, Hurricane Florence made landfall in North Carolina, leaving similar damage in its wake. The list goes on: Hurricane Sandy, Hurricane Katrina, Hurricane Ivan, Hurricane Charley are other storms in recent history that have had devastating impacts on communities in New Jersey, Florida, and Louisiana. Followingthese catastrophic storms, it is often those who rent who are most impacted. Renters’ homes have been damaged, some made inhabitable, and yet, landlords have refused to maintain or repair the properties.

In property law, there has traditionally been no tenant-oriented remedy mitigating damage caused by a natural disaster. Instead, landlords have looked to the act of God defense, a tool that eliminates obligations under a contract where a sudden and unexpected force outside the landlord’s control makes the landlord’s responsibility under the lease impossible. At stake in a lease, however, is more than just contractual obligations shared by a landlord and tenant. At stake is also a tenant’s recognized property right: the right to use and enjoy a premise for temporary duration. In recent years, climate change and the increased frequency and severity of hurricanes has disheveled the landlord-tenant relationship. These changed circumstances have created an imbalance that property doctrines, once shaped to incite a more equitable transaction between landlord and tenant, have failed to address. This Comment argues that doctrines such as the implied warranty of habitability and the covenant of quiet enjoyment do, in fact, extend to damage caused by hurricanes. Further, because many communities have grown to expect hurricanes, an event to which landlords are on notice, landlords may no longer raise the act of God defense and avoid liability.

Property law best protects individuals’ rights when external influences are stable. Climate change has disrupted that stability and placed many individuals’ property rights at risk. By recognizing anthropogenic climate change and its impacts on communities as the new reality, property doctrines are better equipped to safeguard the carefully calibrated rights derived from a landlord-tenant relationship.

Introduction

The law of property rests on a foundation of stability and predictability.¹ Doctrines such as the implied warranty of habitability and the covenant of quiet enjoyment ensure that property interests, specifically those arising in landlord-tenant relationships, are appropriately balanced and protected for the duration of a lease.² Tenancy law establishes rights and obligations that define the scope of the relationship between landlord and tenant, including a few clear-cut disclaimers of liability.³ For example, if a non-manmade force, such as an extreme weather event, infringes upon the tenant’s rights, there has traditionally been no remedy for the tenant aside from terminating the lease because “the changed condition is not the fault of the landlord.”⁴ A new reality, however, calls into question this traditionally clear-cut exception.⁵ As a result of rising global temperatures, extreme weather-related events are battering coastlines in places like North Carolina and Texas, as well as other communities, with increased frequency and severity, and the impacts on tenancy interests are undeniable.⁶

In September 2018, Hurricane Florence ravaged North Carolina communities.⁷ According to the American Red Cross, thousands of homes were damaged or destroyed by rising waters caused by Hurricane Florence.⁸ In the weeks that followed the hurricane, many families remained homeless.⁹ According to one local North Carolina news report, over 1900 residents remained in shelters in the weeks following the storm,¹⁰ though the American Red Cross statistics suggest a much higher number.¹¹ Hurricane Florence hit single-family homes the hardest.¹² One North Carolina town reported that approximately 200 residential properties had been destroyed by flooding or tree damage resulting from the storm.¹³ Likewise, the amount of aid allocated by the Federal Emergency Management Agency (FEMA) to Hurricane Florence damage illustrates the storm’s expansive impact on property interest holders. As of October 10, 2018, FEMA has approved over 26,000 Individual Assistance Applications to financially support homeowners and renters, fixing damage Hurricane Florence caused.¹⁴ Additionally, as of May 2019, 657 households received temporary housing and $144 million was approved for FEMA Housing Assistance.¹⁵

According to the Red Cross, “thousands of homes and structures were damaged during the storm,” and single-family rental houses have been hit the hardest.¹⁶ Hurricane damage typically includes water damage, from precipitation and storm surges, with potential to “saturate flooring, walls and furnishings,”¹⁷ which suggests that many rental homes in North Carolina have likely faced similar damage. As one illustration, a renter in North Carolina following Hurricane Florence stated that she was displaced from her three-bedroom home after a tree fell on the property during the storm.¹⁸ Months following the storm, the landlord has yet to fix the property, and the renter has no idea when she will regain access to the apartment.¹⁹ This renter’s story is only one anecdotal expression of Hurricane Florence’s lasting impacts on the rental community in coastal North Carolina.

A year prior to Hurricane Florence’s devastating blow to coastal North Carolina communities, Hurricane Harvey made landfall in Texas as a Category Four hurricane in August 2017.²⁰ Hurricane Harvey’s “significant damaging winds and floods” caused “deadly flooding over Southeast Texas.”²¹ As “one of the worst flooding disasters in U.S. history,” the American Red Cross “[p]rovided immediate financial assistance for more than 575,000 affected households” in addition to coordinating 414,800 overnight shelter stays.²² Likewise, FEMA relief amounted to over $1.6 billion in efforts to help families recover after losing their homes.²³ A year following Hurricane Harvey’s wake, potential legal implications have surfaced in the landlord-tenant landscape. Notably, the Texas Attorney General has reported receiving twenty-three informal complaints on matters relating to landlords and hurricane damage.²⁴ The majority of landlord-tenant issues have stemmed from “difficult[y] getting out of leases on damaged properties [and] short timelines for evictions.”²⁵ Other rising tensions have included landlords forgoing responsibility for damage: alleging that tenants must do their own repairs, demanding rent when apartments are unlivable, and threatening to withhold security deposits or spurn the renters’ credit reports for failure to pay.²⁶ Moreover, many tenants have been without any remedy from governmental aid efforts—FEMA’s response only “approved less than half the applications for assistance” in the months following Hurricane Harvey.²⁷ Overall, the damage caused by both Hurricane Florence and Hurricane Harvey to renters has been undeniably profuse.

In light of these changing circumstances, a new reality threatens to dishevel the carefully constructed relationship between landlord and tenant. Although the implied warranty of habitability and the covenant of quiet enjoyment may not have initially envisionedthe increased frequency and intensity of natural catastrophes and subsequent impacts on renters,²⁸ hurricanes do not wash away a tenant’s rights. Accordingly, under the implied warranty of habitability and the covenant of quiet enjoyment, landlords are responsible for damage caused by climate change-related weather events because increasingly accurate weather prediction models and increased access to hurricane-risk information have placed landlords on sufficient notice of both the natural disaster events and the potential damage for which they will be held responsible. Part I of this Comment provides a detailed background on traditional property doctrines like the implied warranty of habitability and the covenant of quiet enjoyment. Specifically, Part I details the obligations and remedies available to both tenants and landlords as they are presently interpreted and applied in the common law and by statutes. This Part also explores the current state of global warming, details the use of predictive weather forecast measures, and outlines how general access to hurricane-risk information has increased. Part II of this Comment applies these doctrines to a new reality: landlord-tenant relationships substantially impacted by extreme weather events attributable to climate change. Part II argues that although hurricanes cause the damage, the landlord’s obligations under the warranty of habitability and the covenant of quite enjoyment are not extinguished. This Part recalibrates and balances the property interests shared by the landlord and the tenant under these doctrines.

This Comment concludes that if the landlord fails to correct foreseeable conditions caused by hurricanes that materially affect the tenants’ health and safety, the landlord has breached the warranty of habitability. Additionally, if the landlord fails to sufficiently weatherproof properties to withstandforeseeable hurricane damage, this failure constitutes a material act or omission on the part of the landlord and gives rise to a breach of the covenant of quiet enjoyment. Finally, landlords may no longer rely on an act of God defense to avoid liability for damage caused by hurricanes. For example, if a landlord obstructshabitability standards by failing to repair damage caused by hurricanes, the landlord may not raise an act of God defense to avoid rent abatement payments. Ultimately, if the landlord fails to properly repair or maintain the premises, thereby constructively evicting a tenant or violating habitability standards, the tenant is entitled to rent abatement, repairs, or contractual release from the tenancy.

I. Background

Part I will provide an overview of the lasting impacts Hurricane Harvey and Hurricane Florence have had on Texas and North Carolina communities, particularly the storms’ impacts on renters.²⁹ Additionally, this Part will detail the current discourse around climate change in the legal and scientific community, describing recent climate change-related litigation as well as current hurricane-risk assessment models and the methods in which hurricane-risk information is predicted and disseminated to communities at large. Next, the implied warranty of habitability and the covenant of quiet enjoyment will be examined through case law. Finally, Part I will explore the act of God defense as it pertains to landlords, illustrating when the defense may and may not free a landlord from liability.

A. Climate Change in the Scientific and Legal Community

Globally increasing temperatures have contributed to the intensity and frequency of storms like Hurricane Florence in North Carolina and Hurricane Harvey in Texas.³⁰ In 2018, the Intergovernmental Panel on Climate Change (IPCC), a United Nations intergovernmental organization dedicated to assessing science related to climate change, observed with high confidence that “anthropogenic global warming is currently increasing at 0.2 [degrees Celsius] per decade due to past and ongoing emissions” by humans.³¹ With very high confidence, theIPCC additionally stated that the “observed global mean surface temperature for the decade 2006–2015 was 0.87 [degrees Celsius] higher than the average over the 1850–1900 [pre-industrial] period,”³² concluding with medium confidence that “[t]rends in intensity and frequency of some climate and weather extremes have been detected over time spans during which about 0.5 [degrees Celsius] of global warming occurred.”³³ Finally, the IPCC has indicated that extreme weather events fall into one of the Panel’s five reasons for concern about increasing global temperatures, finding that extreme weather events pose “severe and widespread impacts/risks” for “people, economies and ecosystems across sectors and regions.”³⁴ The IPCC is but one organization dedicated to using science to track issues like climate change and its effect on weather trends.

Similarly, the Union of Concerned Scientists (“UCS”) is a nonprofit organization dedicated to using science to mitigate the effects of climate change nationally.³⁵ The UCS issued a report, which concluded that although hurricanes have always threatened North America, the intensity of these threats has increased since the 1970s.³⁶ The article noted that scientific research has “attribute[d] individual hurricanes to global warming” like Hurricane Harvey, and further concluded that the “probability of a storm with precipitation levels like Hurricane Harvey was higher in Texas in 2017 than it was at the end of the twentieth century.”³⁷ As a result of climate change, a storm as disastrous as Hurricane Harvey, which used to occur once a century, now is likely to occur every sixteen years.³⁸ The report expressly attributes these changes to “[h]uman-made global warming,” which has “create[d] conditions that increase the chances of extreme weather.”³⁹

Additionally, the U.S. Global Change Research Program, a multi-federal agency endeavor, recently released its Fourth National Climate Assessment providing a comprehensive report on the potential impacts of climate change on communities in the United States.⁴⁰ In its Summary Findings, the program expressed concern regarding climate change’s impact on “communities across the United States, presenting growing challenges to human health and safety, quality of life, and the rate of economic growth,” in addition to explicit concerns regarding climate change’s impact on the United States’ infrastructure.⁴¹ The Summary reports that increases in “heavy precipitation events” and “coastal flooding” pose a serious threat to “America’s trillion-dollar coastal property market.”⁴²

Finally, a recent study released by Stony Brook University School of Marine and Atmospheric Sciences examined “human induced” climate change and specifically focused on analyzing its impact on the strength of Hurricane Florence.⁴³ According to the study, climate change directly increased Hurricane Florence’s intensity, amount of rainfall, and size.⁴⁴

Alongside advancing scientific research on climate change and concerns regarding climate change’s impacts on the human landscape, weather prediction models have also advanced,offering increasingly accurate notice of extreme weather events.⁴⁵ In the last four decades, “the accuracy of three- to ten-day forecasts [of hurricanes] has been increasing by about one day per decade.”⁴⁶ For example, meteorologists predicted Hurricane Sandy days ahead of time, providing advance notice to many communities that were eventually impacted by the storm’s landfall.⁴⁷ According to a recent report by the Hurricane Forecast Improvement Project, forecasting model technology is continuing to improve through the use of “several probabilistic [rapid intensification] models,”⁴⁸ and the Project has clear goals to improve forecasting accuracy to reduce human casualties, injuries, and economic damage.⁴⁹

As the threat of storms and their potential impacts looms larger, access to hurricane-risk information provided by prediction models has also improved.⁵⁰ The public can access hurricane predictions through National Weather Service forecasters, private forecasters, various media and government agencies, and other organizations.⁵¹ The most common information providers to the public regarding hurricane risk include “[l]ocal television and radio personnel.”⁵² As one example, the National Hurricane Center, a part of the National Oceanic and Atmospheric Administration, has established a Storm Surge Unit. This Unit consists of a “small group of highly trained meteorologists and oceanographers” who produce model predictions for landfalling hurricanes in addition to hypothetical storm simulations to improve storm preparation.⁵³ The Unit relies on a computer model called the “Sea, Lake, and Overland Surges for Hurricanes” to predict storm damage vulnerability. As soon as a “hurricane warning is issued, approximately 36 hours prior to the onset of tropical storm force winds,” the team tracks the storm and continues coverage “until the threat from storm surge subsides.”⁵⁴ Further, the Unit supports both a Hurricane Specialist Unit and local weather forecast offices to convey “vulnerability estimates during land-falling hurricanes” by providing “Hurricane Local Statements,” which include information such as: the affected area, current watches or warnings, precautionary recommendations, storm surge information, present winds, predictions about the onset of tropical storm-force or hurricane-force winds, and the potential for tornados, floods, rip currents, and beach erosion.⁵⁵ The National Hurricane Center also provides a detailed overview of hurricane preparedness tips and potential hazards.⁵⁶ For example, the Center uses the “Saffir-Simpson Hurricane Wind Scale,” which estimates property damage relating to a hurricane’s wind speed.⁵⁷ The Wind Scale suggests that Category Three hurricanes create “potential for significant loss of life and damage,” especially to homes.⁵⁸ Even more concerning, Category Four hurricane damage has the potential to make “[m]ost of the [affected] area . . . uninhabitable for weeks or months.”⁵⁹ The National Hurricane Center also implements “RSS Feeds” to disseminate pertinent information regarding storms, which is the Center’s “method of summarizing the latest news and information . . . in a lightweight form that can be easily read by a number of news readers or news aggregators.”⁶⁰ Alternatively, the Center provides “Audio Briefings,” which provide “the latest information regarding [a] hurricane threat and its expected impacts.”⁶¹ In sum, tools for predicting and disseminating hurricane-risk information have vastly improved access to hurricane-risk information. Because of this increased access to weather prediction information, landlords have been placed on notice of both the increased frequency and severity of these storms as well as the types of property damage caused by these storms.

Alongside advancing technology in the hurricane-risk information space, the legal sphere has likewise adjusted to a new landscape—one where individuals’ rights are now being implicated by climate change. At this intersection of climate change and the law, litigation is on the rise.⁶² For example, a case recently filed in the United States District Court for the District of Oregon addressed the impacts of climate change on private citizens. In Juliana v. United States,⁶³ the plaintiffs argued that the government’s failure to effectively respond to climate change has caused injury to constitutionally guaranteed property rights.⁶⁴ One plaintiff in the action alleged that a storm that destroyed her home would usually “only happen once every 1,000 years,” but instead, “is happening now as a result of climate change.’”⁶⁵ Although lawsuits alleging personal property damage caused by climate change-induced events raise justiciability issues, the Oregon district court held that the plaintiffs’ allegations of injury and causation were sufficiently plausible to permit the case to move past the motion to dismiss stage.⁶⁶ As a recent development in the case, the United States Supreme Court denied the Trump Administration’s writ of mandamus to stay the trial in November 2018.⁶⁷ Meanwhile, the U.S. government filed an additional application for stay and a new petition for a writ of mandamus. The Ninth Circuit responded by granting a temporary stay of district court proceedings pending its consideration of the petitioner for writ of mandamus.⁶⁸ Accordingly, trial preparation continues, and the plaintiffs have since (1) filed an emergency motion to lift the stay,⁶⁹ (2) a motion to expedite review,⁷⁰ and (3) a motion for a preliminary injunction while the Ninth Circuit addresses the plaintiffs’ early appeal.⁷¹

Like Juliana, other courts have analyzed justiciability issues when human-induced global warming is the alleged trigger of a particularized harm.⁷² For example, in Massachusetts v. EPA,⁷³ the Supreme Court agreed that the impact of “manmade greenhouse gas emissions” on global warming was not disputed,⁷⁴ finding that “U.S. motor-vehicle emissions make a meaningful contribution to greenhouse gas concentrations” and thus, to global warming.⁷⁵ The Court held that the causation element of standing was not at issue, which allowed the petitioners to successfully argue that a “reduction in domestic emissions would slow the pace of global emissions increases” and likewise slow harmful “rise in sea levels associated with global warming.”⁷⁶

Even before Juliana, courts recognized claims relating to climate change’s impact on individuals’ rights as justiciable.⁷⁷ Moving forward, courts will look to cases like Massachusetts v. EPA and new precedent like Juliana for guidance in factual scenarios raising climate change issues. Accordingly, as plaintiffs allege claims under the implied warranty of habitability or covenant of quiet enjoyment following hurricane-caused damage, these decisions will also guide courts to permit claims under these doctrines to proceed.

B. Implied Warranty of Habitability

Under the implied warranty of habitability, a landlord has a duty to correct foreseeable conditions that materially affect the physical health and safety of a tenant.⁷⁸ In many jurisdictions, the warranty of habitability has been codified,⁷⁹ and although it varies widely by jurisdiction, the warranty of habitability generally “requires landlords to maintain safe and sanitary housing fit for human habitation.”⁸⁰ The warranty, however, is not meant “to make the landlord a guarantor of every amenity customarily rendered in the landlord-tenant relationship.”⁸¹ Rather, the warranty provides protection from conditions “that materially affect the health and safety of the tenants.”⁸² The warranty’s scope includes conditions that interfere with the health and safety of the tenants, so long as the damage was within the landlord’s control. Modern application of this doctrine, however, has demonstrated that a landlord may still be liable for damage caused by third parties if there were steps the landlord could have taken to remedy the breaching condition.⁸³

1. Condition must be foreseeable

Before a landlord may be held liable for defects or damage materially affecting a tenant’s health or safety caused by an outside source or a third party, courts engage in a threshold inquiry: whether the dangerous condition was foreseeable to the landlord.⁸⁴ A condition on the premises is foreseeable if the landlord was placed on sufficient notice of the condition, which then triggers the landlord’s duty to repair or remedy the condition.⁸⁵ For example, in North Carolina, the landlord’s duty under the state’s codified version of the warranty does not require landlords to warn tenants preemptively about unsafe conditions, “but rather[, it creates] the duty to correct unsafe conditions,” of which the landlord has knowledge or notice.⁸⁶ Moreover, the landlord’s duty to repair damage or remedy a defect is triggered when there is an “imminently dangerous condition on the premises,” and the landlord has either acquired knowledge or received notice of the condition.⁸⁷ Accordingly, when a court finds that a landlord has breached his duty to maintain the habitability of the premises in a reasonably safe condition, courts have ultimately decided that the landlord could have reasonably foreseen the potential danger; that the danger fell within the scope of the landlord’s standard of care; and finally, that the danger constituted a condition to which the court was willing to extend the warranty of habitability.⁸⁸

A dangerous condition is foreseeable if the landlord first had sufficient notice of the condition.⁸⁹ For example, the court in Daitch v. Mid-America Apartment Communities⁹⁰ found that because the plaintiff-tenant presented no evidence that he notified the landlord about water leakage and a faulty air conditioner, there was no breach of the warranty.⁹¹ Other examples of conditions requiring notice to the landlord before a tenant may recover have included overflow of raw sewage inside the tenant’s dwelling as well as flooding from broken pipes.⁹² Though not directly discussing notice, a New York court found that a landlord had breached the warranty of habitability when the landlord failed to remedy damage caused by a series of eight floods.⁹³ In that case, the landlord asserted that he had no duty to repair the defects because they were caused by events out of his control.⁹⁴ The court rejected the landlord’s defense, however, highlighting that both the frequency of the floods as well as the fact that the tenant’s apartment had been flooded on two previous occasions overwhelmed the landlord’s attempted evasion of responsibility.⁹⁵ Consequently, fora tenant to have a successful claim for breach of the warranty of habitability, the tenant must demonstrate that the dangerous condition was foreseeable to the landlord by showing that the landlord had actual knowledge of the condition or sufficient notice of the condition.⁹⁶

2. Condition must materially affect the tenant’s health and safety

When a condition on a rental property makes the premises unsafe for the tenant or materially affects the tenant’s health, a landlord bears a duty under the implied warranty of habitability to repair the property.⁹⁷ Generally, case law has found landlords have breached the warranty when damage fell within the landlord’s control—such as failure to repair unstable flooring, failure to repair poor ventilation, or failure to remedy cockroach infestations.⁹⁸ Conversely, a North Carolina court found that a landlord did not breach the warranty for failing to install or maintain window screens because the window screens comported with housing codes in that jurisdiction.⁹⁹ Additionally, if the alleged condition was a result of “normal wear and tear, the landlord does not have a duty during the lease term . . . to repair or remedy [that] condition.”¹⁰⁰

In Texas, the legislature codified the implied warranty of habitability and made clear that its statute applies only to conditions that “materially affect the physical health or safety of an ordinary tenant.”¹⁰¹ For example, the deterioration of the interior finish of a house would not violate the statute unless the deterioration rose to a level threatening public health or safety of ordinary tenants.¹⁰² Whether a defect or deterioration meets this threshold for a violation of the statute is determined on a case-by-case basis.¹⁰³ A court will consider various factors to determine whether the condition triggers the warranty’s protection, such as: whether the event had occurred in the past, whether it had occurred recently and how frequently, and whether the past event had gained any publicity.¹⁰⁴ Generally, however, the landlord’s duty under statute-based warranties does not extend to damage caused by the tenants such as defacement or removal of property.¹⁰⁵ Notably, in Secretary of Housing & Urban Development v. Layfield,¹⁰⁶ the court extended the implied warranty of habitability to cover criminal conduct that occurred on a rental property because the condition was foreseeable; it took place in an area under the landlord’s control; and the condition materially affected the health and safety of the tenants.¹⁰⁷ While courts have found that failure to remedy unstable flooring, poor ventilation, and cockroach infestations amounts to conditions that materially affect the tenant’s health and safety, failure to install a window screen or interior deterioration does not.¹⁰⁸ Ultimately, for a tenant to succeed on a claim for violation of the warranty of habitability, the tenant must prove that the dangerous condition would “materially affect the physical health or safety of an ordinary tenant.”¹⁰⁹

3. Does the warranty extend to natural disaster-caused damage?

While most jurisdictions have yet to directly address whether damage resulting from a natural disaster falls within the purview of their warranties of habitability, New York and California have both alluded to the possibility that the implied warranty of habitability extends to damage caused by natural disasters. Applying its statute-based warranty of habitability, the New York Court of Appeals has explained that because “the statute places an unqualified obligation on the landlord to keep the premises habitable, conditions occasioned by . . . natural disaster[s] are within the scope as well.”¹¹⁰ For example, in Park West Management Corp. v. Mitchell,¹¹¹ the New York Court of Appeals held that a landlord breached the warranty of habitability when his entire maintenance and janitorial staff did not report to work because of a union strike, thus resulting in extensive service interruptions for the tenants of the property—despite the interruptions falling outside the scope of the landlord’s control.¹¹² The work stoppage caused trash to accumulate and created noxious odors, as well as an environment where rats and cockroaches flourished. The court found that these conditions materially affected the health of the tenants.¹¹³ Further, New York common law has explicitly stated that “[t]he fact that the cause of the deprivation [or damage] may in the first instance be rooted elsewhere” does not mean that the landlord is released from his duties under the warranty of habitability.¹¹⁴ Although New York has yet to explicitly apply the warranty of habitability to damage caused by natural disasters such as hurricanes, the courts have left open the possibility that the warranty extends to natural disaster-caused damage.¹¹⁵

Alongside New York, California has also alluded to the possibility that its implied warranty of habitability covers damage caused by natural disasters. Unlike most jurisdictions, California has not explicitly codified the warranty of habitability; however, some parts of the California code govern the landlord-tenant relationship, discussed below. Under the implied warranty of habitability in California, a landlord is not required to “ensure that leased premises are in perfect, aesthetically pleasing condition, but it does mean that ‘bare living requirements’ must be maintained.”¹¹⁶ The California Supreme Court suggested that the following conditions might breach the warranty: “(1) the periodic failure to supply heat and water, (2) the malfunctioning of an incinerator, (3) the failure in hot water supply, [and] (4) several leaks in the bathroom.”¹¹⁷

Most notably, the California legislature has stated that a landlord’s duty to repair property remains intact even when an earthquake causes the damage.¹¹⁸ California courts have strictly applied California code to landlord-tenant disputes. For example, in Erlach v. Sierra Asset Servicing, LLC,¹¹⁹ the court held that although the city “red tagged” an apartment due to unsafe conditions, the tenant’s rights under the lease were not terminated, and the landlord still bore the responsibility of putting the property “into a condition fit for occupation and [to] repair all subsequent dilapidations.”¹²⁰ Accordingly, although California has not explicitly stated that the warranty encompasses natural disasters like New York has, California courts’ application of California code strongly suggests these standards apply not only to damage caused by earthquakes, but also natural disasters.¹²¹

4. Remedies

Remedies following a breach of the implied warranty of habitability vary by jurisdiction. Generally, when a breach is found, the tenant may not unilaterally withhold rent prior to a judicial determination of a right to do so.¹²² Courts must examine a mutuality of obligations between landlord and tenant before relief is granted.¹²³ When relief is granted, rent abatement tends to be the most common remedy, and it is “calculated as the difference between the fair rental value of the premises . . . and the fair rental value of the premises in their unfit condition (‘as is’) plus any special and consequential damages alleged and proved.”¹²⁴ Moreover, a tenant who chose to withhold rent may also recover under the North Carolina’s statute-based warranty, but the “damages of rent abatement can include only those amounts actually paid by [the tenant].”¹²⁵ In places like Texas, after establishing that a landlord bore a duty to repair an unsafe condition, the duty is limited to “diligent efforts to repair or remedy the condition.”¹²⁶ The Texas statute also explains that if the landlord is liable for a breach, “the tenant may have the condition repaired or remedied and may deduct the cost from a subsequent rent payment.”¹²⁷ Finally, in North Carolina, the landlord must make the required repair or remedy “within a reasonable period of time based upon the severity of the condition” to sufficiently restore the tenant’s right under the warranty of habitability.¹²⁸

C. Covenant of Quiet Enjoyment

Like the warranty of habitability, the covenant of quiet enjoyment is another mechanism through which a tenant may challenge a landlord’s action or inaction that has implicated the tenant’s right to enjoy her rights under a lease. An act or omission on part of the landlord constitutes a breach of the covenant of quiet enjoyment when it deprives the tenant of her beneficial enjoyment of the premises and causes the tenant to abandon the premises.¹²⁹ The covenant of quiet enjoyment protects a tenant’s right to use and enjoy her premises for the duration of a lease.¹³⁰ Ultimately, a landlord may breach the covenant “if serious interference with a tenancy is a natural and probable consequence of what the landlord did, what he or she failed to do, or what he or she permitted to be done.”¹³¹

First, the landlord’s act or omission breaches the covenant of quiet enjoyment if it seriously interferes with the tenant’s ability to enjoy the premises as provided by the lease.¹³² If the landlord either wrongfully evicts the tenant by demanding the tenant leave, or if the landlord constructively evicts the tenant by depriving the tenant of the “beneficial enjoyment of the premises to which he is entitled under his lease,” a breach has occurred.¹³³ Generally, acts or omissions on part of the landlord that constitute a breach of the covenant of quiet enjoyment include the following: interference with a tenant’s access to the premise; failure to take security measures; and failure to correct defective conditions on the leased premise that obstruct the tenant’s right to enjoy the property.¹³⁴ For instance, in Dobbins v. Paul,¹³⁵ a North Carolina appellate court found that the landlord breached the covenant when the landlord moved all the tenant’s belongings outside the apartment for a period of three days before the end of the tenant’s lease term.¹³⁶ Likewise, the North Carolina Supreme Court found a breach of the covenant when the landlord entered a rental property without authorization and dismantled walls, thereby disrupting the tenant’s beneficial enjoyment of the premises.¹³⁷ Conversely, a landlord’s failure to repair a leaking roof did not render the premises untenable, and the court found that there was no breach of the covenant because the tenants remained on the premises for four years, indicating that the leaking roof had not created conditions harsh enough to obstruct the tenants’ rights under the lease.¹³⁸ Moreover, in Armstrong v. Yopp Properties, LLC,¹³⁹ mold had developed in a tenant’s apartment; however, the court found that because the landlord never explicitly demanded that the tenant leave her apartment during the mold remediation process, the constructive eviction claim failed, and the landlord did not breach the covenant of quiet enjoyment.¹⁴⁰ Ultimately, the court explained that the tenant’s claim failed because the tenant did not offer evidence sufficient to demonstrate that the landlord either forced the tenant out or explicitly told the tenant that she could not remain on the premises.¹⁴¹ Other material acts by the landlord have included a landlord locking apartment doors because such an action demonstrates the landlord’s intent that the tenant “no longer enjoy the [p]remises.”¹⁴² Finally, in Coleman v. Rotana, Inc.,¹⁴³ a Texas appellate court held that a landlord had committed a material act when the landlord failed to provide adequate parking for the tenant’s restaurant and thus breached the covenant of quiet enjoyment.¹⁴⁴ Although the plaintiffs did not ultimately prevail on their breach of the covenant of quiet enjoyment claim because they failed to provide sufficient evidence that they had abandoned the property within a reasonable period, this case provides an example of a landlord’s omission constituting a material act.¹⁴⁵

A court will only find an act or omission to breach the covenant when the landlord’s act or omission affects the tenant’s substantial enjoyment of the property and is more than a minor inconvenience.¹⁴⁶ For example, in McNeely v. Salado Crossing Holding, L.P.,¹⁴⁷ a Texas appellate court held that a landlord did not breach the covenant of quiet enjoyment even though the landlord had changed the apartment’s locks and threw away some of the tenants’ belongings while they were transitioning apartments and before the end of their lease.¹⁴⁸ In this instance, the court explained that although the landlord interfered with the tenants’ right of possession, the tenants did not present sufficient evidence that the landlord’s conduct “amount[ed] to a permanent deprivation of their use and enjoyment of the apartment.”¹⁴⁹ Accordingly, the landlord’s interference “must be substantial” and “so serious as to render the premises unfit for the purposes contemplated by the lease,” or the interference must “substantially affect the tenant’s enjoyment of a material part of the premises” to constitute a breach of the covenant.¹⁵⁰ Thus, minor inconveniences do not rise to an act or omission substantially affecting the tenant’s use of the premises.¹⁵¹ As another example, in Petroleum Collections, Inc. v. Swords,¹⁵² a California appellate court held that the landlord’s failure to repair or replace a “large modular sign,” which initially came with the property, “substantially affected [the tenant’s] beneficial enjoyment of the property as contemplated by the parties . . . .”¹⁵³ However, because the tenant remained in possession of the property for eleven months after the landlord removed the sign, the court precluded the tenant from recovering for the breach.¹⁵⁴ Moreover, another California appellate court held that a tenant was constructively evicted by a leaking roof that had gone unrepaired during rainy seasons.¹⁵⁵ The court explained that because the rain dripped on structural beams and walls and pooled on the floors, the leaking roof had created hazardous conditions that “interfered in a material and substantial manner with the beneficial enjoyment of the premises by plaintiffs.”¹⁵⁶ Because the leaking roof created a hazardous environment that denied the tenants’ use of the property to which they were entitled under the lease, the court held that the condition breached the covenant.¹⁵⁷

Finally, to recover from a breach of the covenant of quiet enjoyment, a tenant must abandon the rental premises as a result of the landlord’s act or omission.¹⁵⁸ If it is found that a landlord’s act or omission has sufficiently interfered with the tenant’s right to use the premises, the tenant may recover damages—usually release from the lease and any duty to pay—so long as the tenant immediately abandons the property.¹⁵⁹ Although some jurisdictions require an immediate abandonment of property to sufficiently allege wrongful eviction, other jurisdictions, like Texas, require only that the tenants “abandon[] the leased property within a reasonable time after [the landlord’s] interference.”¹⁶⁰ Texas courts, however, have not yet allotted a specific time period that is considered reasonable.¹⁶¹ Accordingly, if the tenant succeeds on her breach of the covenant of quiet enjoyment claim, the lease is rescinded and the tenant’s obligation to pay rent is excused.¹⁶²

Overall, when the landlord’s act or omission “merely affects the tenant’s beneficial use of the premises,” the tenant’s obligation to pay rent is not terminated, but the tenant may seek injunctive relief from rent obligations within a reasonable time after the act or omission.¹⁶³ But, if the tenant “elects to surrender possession of the premises, a constructive eviction occurs,” and the tenant has no further obligation to pay rent.¹⁶⁴ Overall, when a landlord wrongfully evicts a tenant, the tenant is entitled to “recover possession or to terminate his lease” and recover any damages caused by the removal or attempted removal of the tenant.¹⁶⁵

D. Adapting to Changed Circumstances

Both the warranty of habitability and the covenant of quiet enjoyment exist to balance the relationship between landlord and tenant, ensuring that the rights of both are honored throughout the duration of a lease. Ultimately, by “creat[ing] conditions of great instability and unpredictability,” extreme weather events threaten to dishevel the carefully calibrated rights and duties that interest holders exercise and share in the realm of property.¹⁶⁶ For example, Hurricane Katrina has been characterized as producing “radically changed circumstances,” with the potential to “upset settled expectations [of property holders] and put large numbers of people at risk of losing control of the tangible and intangible resources that are central to their lives.”¹⁶⁷ In response to shifting societal values, courts and legislatures have historically tweaked the law of property when new circumstances call for change.¹⁶⁸ Notably, the California Supreme Court used the common law to adopt the implied warranty of habitability in an effort to rebalance tenancy rights in the wake of an increasingly urban society.¹⁶⁹ Legislatures have likewise responded by adopting codified versions of the implied warranty of habitability.¹⁷⁰ In Green v. Superior Court,¹⁷¹ the California Supreme Court explained that “enormous factual changes in the landlord-tenant field” implicated the need for change.¹⁷² It held that the modern urban landlord-tenant relationship and “contemporary urban” living transformed the traditional agrarian lessor-lessee transaction and called for a recalibration of tenancy rights.¹⁷³ Ultimately, the court qualified the adoption and implementation of the implied warranty of habitability doctrine based on the modernization of society, explaining that to best honor the rights of the tenant in this new reality, the landlord’s obligation to maintain the habitability standards of a rental property must run through the entire duration of a lease.¹⁷⁴

E. Act of God Defense

A landlord may only assert an act of God defense (1) if damage caused by a natural disaster is not foreseeable, and (2) if there was no human involvement that caused, attributed, or exacerbated the damage-causing event.¹⁷⁵ Each of these elements is “a question of fact for the jury.”¹⁷⁶ Generally, when a non-manmade event renders a premises untenable, remedying or repairing the structural damage or defect does not fall within the scope of a landlord’s responsibilities under a lease.¹⁷⁷ Accordingly, if a non-manmade force, such as an extreme weather event, infringes upon a tenant’s rights, doctrines like the implied warranty of habitability or the covenant of quiet enjoyment provide little to no recourse for the tenant because “the changed condition [was] not the fault of the landlord . . . .”¹⁷⁸ Although litigants raise the act of God defense more often in the course of negligence actions, the warranty of habitability elements—particularly the duty element—intersect closely with negligence analysis despite being derived in property law.¹⁷⁹ Namely, the general standard of care that attaches to landlords likewise defines the scope of what a landlord will and will not be held responsible for under the warranty of habitability.¹⁸⁰

First, if a landlord raises an act of God defense to damage caused by an extreme storm or event of unprecedented scale, the tenant is precluded from recovery.¹⁸¹ In determining whether an act of God defense is viable, courts will consider the “scale” of the natural event and whether the event has been described as unprecedented.¹⁸² To be unforeseeable, damage must stem from “sudden and unexpected action of fire, flood, and other causes of accidental destruction.”¹⁸³ Accordingly, the defense only applies where a natural event is truly unforeseeable, meaning that its impact is unprecedented.¹⁸⁴ Thus, if a storm has occurred in a geographic region in the past, like rains that come every year, the storm or weather event cannot constitute an act of God because “there is in effect a presumption that it can occur again,”¹⁸⁵ making it foreseeable to the members of that community.¹⁸⁶

Second, if a landlord asserts an act of God defense, the defense may only stand if there was no human interference that attributed to the damaging-causing event.¹⁸⁷ After determining whether an event is foreseeable, a fact-finder must next determine whether there was an “absence of human agency.”¹⁸⁸ If the event—whether it is a flood, fire, or some other natural disaster—is foreseeable, and if the resulting injury could have been mitigated by “human prudence, foresight, and care reasonably expected,” then a landlord may be held liable for resulting damage.¹⁸⁹

Moreover, if an individual is under a heightened duty to know about possible “natural phenomena, such as flooding or hurricanes,” then the human agency component of the defense is at issue because a court might find that the individual is under a heightened duty of care and should thus be held responsible.¹⁹⁰ The test is an “objective standard of what a reasonable person under similar circumstances knew, or reasonably should have known.”¹⁹¹ In the landlord-tenant context, information about “records of natural phenomena” found in weather almanacs and similar sources are “not routinely provided . . . to prospective . . . tenants,” which suggests that landlords often possess more explicit access to foreseeable weather events and potential damage.¹⁹² For example, in Polack v. Pioche,¹⁹³ the California Supreme Court held that an act of God defense could not stand when water had broken through a natural reservoir embankment after “persons interfered with the embankment.”¹⁹⁴ There, the court held that the failed embankment did not constitute “ravages occasioned by forces of nature, uncontrolled and unaided by the hand of man;” but rather, the resulting damage was an accident arising from the “the fault . . . of man.”¹⁹⁵ If the natural weather event “would not have produced the injury alone;” there was some sort of human interference;¹⁹⁶ or there was historical data indicating notice of climatic variations such that the landlord had “reasonable warning of them,”¹⁹⁷ then the act of God defense cannot stand. Accordingly, unprecedented hurricanes likely fall within the scope of an act of God; however, as soon as hurricanes and resulting damage become patterned phenomena—and thus foreseeable by a community—the defense must fail.¹⁹⁸

II. Analysis

As weather events amplified by climate change—like Hurricane Florence and Hurricane Harvey—batter coastline communities with increased frequency and severity, the landlord-tenant relationship faces a new reality.¹⁹⁹ These changed circumstances undermine tenants’ property interests.²⁰⁰ Landlords’ responses to hurricane-caused damage in North Carolina and Texas have left many tenants without sufficient repairs or without access to their homes entirely.²⁰¹ Moreover, some landlords have continued to demand rent payments for properties decimated by flood, wind, or tree damage.²⁰² With increasingly frequent storms and subsequent damage to rental properties, the equilibrium between landlord and tenant has been unsteadied. The foundational aims of stability and predictability that attach to the well-defined rights, duties, and obligations of individuals within the scope of a lease agreement must be re-examined to best honor the property interests created in the course of a tenancy.²⁰³

Although no court has yet to explicitly apply property doctrines such as the implied warranty of habitability or the covenant of quiet enjoyment to the reality of climate change and its impact on tenancy rights, these doctrines do, in fact, extend to damage caused by hurricanes for two reasons. First, the landlord’s obligation to maintain a property’s living conditions under the warranty of habitability and the tenant’s rights to enjoyment of the property under the covenant of quiet enjoyment are not extinguished simply because the damage was caused by a natural disaster. Second, hurricanes like Hurricane Florence and Hurricane Harvey fail to meet the elementsrequired for a successful act of God defense, and landlords may no longer rely on this defense to avoid liability.

A. A Landlord’s Obligations Under the Warranty of Habitability Extend to Hurricane-Caused Damage Because a Landlord Has Sufficient Notice

Under the implied warranty of habitability, a landlord is responsible for damage caused by hurricanes. Based on advancing scientific research and the community’s increased access to advanced weather prediction models and forecasts, the reality of climate change has expanded the universe of potential conditions to which landlords have notice and has thus redefined the scope of a landlord’s standard of care.²⁰⁴ A landlord’s expected standard of care in a landlord-tenant relationship thus defines the scope of what a landlord will and will not be held responsible for under the warranty of habitability.²⁰⁵ These changed circumstances have restructured the landlord’s duty to correct unsafe conditions under the implied warranty of habitability.²⁰⁶ Accordingly, in locations that have been affected by massive hurricanes—like North Carolina and Texas—landlords have either actual knowledge or sufficient notice of these extreme weather events and the conditions that may be caused by or aggravated by hurricanes.²⁰⁷ Courts will likely hold landlords responsible for the damage, so long as the condition also fails to meet habitability standards by materially affecting the health or safety of a tenant.²⁰⁸

First, landlords are responsible for hurricane-caused damage under the implied warranty of habitability because landlords have either actual knowledge or sufficient notice of conditions that may be caused or aggravated by hurricanes, thereby making hurricane damage foreseeable for the purposes of theimplied warranty of habitability. Increasingly accurate weather prediction models and recent hurricane events have established a universe of foreseeable damage caused by these weather events.²⁰⁹ Additionally, the increased availability of hurricane-risk information suggests that landlords are aware of when to expect a hurricane, its potential severity, as well as the scope of potential damage likely to result from the storm.²¹⁰ Accordingly, landlords have been placed on sufficient notice of conditions that they will likely need to “repair or remedy” after a hurricane to comply with a state’s respective warranty of habitability.²¹¹ By concluding that landlords have been placed on sufficient notice—or bear actual knowledge—of defective conditions likely to result from hurricanes, the warranty of habitability appropriately assesses tenancy rights to account for both the anthropogenic exacerbation of climate change and the improved accuracy of weather prediction models.²¹²

Courts must also turn to foreseeability analysis to effectively determine when the warranty will extend to hurricane-caused damage. The United States Court ofAppeals for the District of Columbia Circuit and state courts in Texas and California have applied foreseeability analysis to flesh out the scope of a landlord’s duty under the implied warranty of habitability.²¹³ Applying the same foreseeability analysis to the current hurricane-ridden reality in North Carolina and Texas, this Comment argues that a landlord’s duty to repair under the warranty encompasses hurricane-caused damage.²¹⁴

First, in determining whether a landlord could have foreseen hurricane damage, a court will determine (1) “whether any [hurricane damage] previously occurred on or near the property, [2] how recently it occurred, [3] how often it occurred . . . [4] and what publicity was given to the occurrences to indicate that the [landlord] knew or should have known about them.”²¹⁵ As extreme weather events like Hurricane Florence and Hurricane Harvey ravage coastal communities with increased frequency, damage caused by future storms with similar impacts will be considered to have “previously” and “recently” occurred on properties in these geographic regions, thereby giving weight to the first two elements of foreseeability analysis.²¹⁶ At the time it made landfall, Hurricane Harvey did not meet the “how often [the event] occurred” element because it was unprecedented. However, intensive media coverage, governmental aid response, and the use of weather prediction models and forecasting techniques have extensively publicized the event and its damage.²¹⁷ This level of publicity provides sufficient weight in favor of finding future hurricanes of this caliber and subsequent damage foreseeable.²¹⁸ Further, based on widespread hurricane-risk information dissemination, landlords, at local and national scales, are on sufficient notice.²¹⁹ Not only do forecasting stations alert a community when an extreme weather event is pending with increased accuracy and advance notice,²²⁰ but forecasting groups also provide insight describing the type of damage that can be expected with different hurricane categories.²²¹ Accordingly, hurricane-caused damage is foreseeable because landlords are informed by past experiences with extreme weather events²²² and through sources which provide more information on hurricane trajectories and related risk, hurricane-caused damage is foreseeable.

Further, the court in Kline v. Massachusetts Avenue suggests that it is reasonable for the warranty of habitability to extend to actions by third parties.²²³ In this case, the court held that the landlord had sufficient notice that the tenants were subjected to criminal attacks because the evidence clearly indicated that the “apartment building was undergoing a rising wave of crime.”²²⁴ The court reasoned that the warranty of habitability extended to conduct by a third party because it was foreseeable given the surrounding context.²²⁵ It also explained that the warranty created expectations on part of the tenant that the landlord would maintain the premises “in their beginning condition during the lease term.”²²⁶ Accordingly, the court found that the tenants’ expectations reasonably extended to actions by third parties on the property, meaning that third party conduct fell within the warranty’s scope.²²⁷ Similarly, a tenant in the hurricane-context may rightfully expect that under the implied warranty of habitability, a landlord will restore a premise to its “beginning condition” in wake of hurricane-caused damage.²²⁸

Second, if a hurricane causes foreseeable damage on a rental property and subsequently makes the premises unsafe for the tenant, the landlord’s duty under the implied warranty of habitability to correct the conditions has been triggered.²²⁹ Rental communities in North Carolina following Hurricane Florence and in Texas following Hurricane Harvey have faced significant damage to their properties.²³⁰ It is no doubt that the damage caused by hurricanes in these scenarios falls outside the scope of the warranty’s exception precluding recovery for “ordinary wear and tear” of property.²³¹ Rather, hurricane-caused damage is more comparable to conditions violating the warranty of habitability like the damage caused in wake of a union strike, as noted in New York, or in wake of earthquake-caused damage, as noted in California.²³² For example, in Park West Management Corp., the New York Court of Appeals found that a landlord had breached the warranty of habitability by allowing trash to accumulate, which then caused noxious odors and an environment where rats and cockroaches flourished.²³³ Although these conditions were more directly the result of a union strike as opposed to acts within the landlord’s control, the court nonetheless held the landlord liable.²³⁴ Similarly, a hurricane—though an event mostly outside of the landlord’s control—may have similar effects on property through flood or wind damage. Likewise, the California legislature decided that the warranty of habitability extended to extreme damage caused by an earthquake, a natural disaster event that frequents California communities, which is similar to hurricane events that frequent coastal communities like North Carolina and Texas.²³⁵ Accordingly, damage caused by hurricanes that goes unrepaired violates warranty of habitability standards because the resulting damage creates conditions that materially impact the safety and health of a tenant.²³⁶ Landlords are thus responsible for returning the premises to fit and habitable conditions, despite the damage stemming from a hurricane.

Finally, general statutory interpretation provides further support for the conclusion that the warranty of habitability extends to hurricane-caused damage. As one example, the North Carolina’s Residential Rental Agreement Act²³⁷ is comparable to New York’s warranty of habitability statute and thus it is likely that the North Carolina statute can be interpreted to envision a similar approach to natural disaster-caused damage.²³⁸ Just as the scope of the warranty of habitability in New York has been interpreted to “place an unqualified obligation on the landlord to keep the premises habitable,” thus encompassing “conditions occasioned by . . . [a] natural disaster,” statute-based warranties like the one North Carolina can be read to place more responsibility on landlords to maintain premises in conformance with its statute, even when that damage is caused by a hurricane.²³⁹ Accordingly, when tenants have experienced extreme flooding, tree damage, or damage caused by high winds—as many tenants have in North Carolina and Texan communities following Hurricane Florence and Harvey²⁴⁰—landlords are responsible for remedying the defective conditions because the damage was foreseeable and materially unsafe.²⁴¹ If the landlord fails to remedy the conditions as required under either the common law or respective statutes, such as the North Carolina Residential Rental Agreements Act or the Texas Duty to Repair statute, then the tenant is entitled to rent abatement for the time period that the tenant goes without a remedy, or the tenant is entitled to recovery of rent already paid to the landlord during the course of the defect’s presence on the property.²⁴² As a best practice to ensure their recovery, however, tenants should immediately inform their landlords of the damage caused after the hurricane.²⁴³

B. When a Landlord’s Act or Omission Evicts a Tenant After a Hurricane, the Landlord Has Breached the Covenant of Quiet Enjoyment

Under the covenant of quiet enjoyment doctrine, generally, “[a] landlord may be liable . . . if serious interference with a tenancy is a natural and probable consequence of what the landlord did, what he or she failed to do, or what he or she permitted to be done.”²⁴⁴ Both the covenant of quiet enjoyment in Texas and North Carolina give rise to protections for tenants when certain acts or omissions by the landlord cause the tenant to be constructively evicted.²⁴⁵ A breach of the covenant claim arises if a tenant’s apartment becomes inaccessible because of conditions like flooding. As a condition subsequent to recovery, a landlord’s failure to act or repair the premises must be the reason that the tenant has been deprived of her enjoyment of the property.

Following a hurricane, if a landlord has failed to repair damage or failed to sufficiently weatherproof a property prior to a hurricane’s landfall, the landlord has committed an “act,” thus falling within the purview of the covenant of quiet enjoyment.²⁴⁶ To breach the covenant, a landlord’s “act” must sufficiently deprive the tenant of beneficial enjoyment of the premises under the lease.²⁴⁷

As demonstrated by one powerful anecdote, Hurricane Florence deprived at least one family of their rented home for months after the storm, and the landlord still did not know when the home would be ready for the tenants’ return weeks later.²⁴⁸ Post-storm damage statistics also suggest that many renters have been deprived of their right to enjoy their rental properties.²⁴⁹ In Coleman v. Rotana, Inc.,²⁵⁰ a Texas appellate court held that a landlord breached the covenant of quiet enjoyment when he failed to provide adequate parking for the tenant’s restaurant.²⁵¹ The court found that the tenants had sufficiently alleged that the inadequate parking, a condition upon which the tenants had relied, constituted a material and intentional act of the landlord.²⁵² Like the plaintiff-tenants in that case, tenants faced with hurricane-related damage that infringes on their ability to access their apartments can argue that their landlords’ inadequate preparation for and the lack of repair following storms like Hurricane Florence or Hurricane Harvey is similar to the landlord’s failure to provide adequate parking in Coleman.²⁵³ Accordingly, landlords’ failure to either sufficiently weatherproof the property or their subsequent failure to provide adequate repairs constitutes an “intentional [material] act of the landlord”²⁵⁴ that “permanently deprives the tenant of the use and enjoyment of the premises.”²⁵⁵ Thus, tenants, whose rights to enjoy their properties have been implicated by storm damage and their landlords’ subsequent failure to fulfill an obligation to repair the structure or provide necessary services, are entitled to remedies, which would include release from any obligation to pay rent.²⁵⁶

Finally, to recover under the covenant, a tenant must have abandoned the property as a direct result of flooding or other hurricane-related damage that the landlord failed to repair.²⁵⁷ If the tenant abandons the property as a result of the hurricane-caused damage, then this element of the covenant has been met, and the landlord has breached the covenant.²⁵⁸ Likewise, if the tenant abandoned the property before a hurricane made landfall for safety purposes and was then unable to return to the property due to damage, the landlord has breached the covenant of quiet enjoyment.²⁵⁹ In both scenarios, the lease is null, and therefore, a tenant may rescind her obligations under the lease.²⁶⁰ For example, following Hurricane Harvey in Texas, many tenants were unable to access or return to their apartments due to damage.²⁶¹ Additionally, many abandoned the premises either before the storm hit and have been unable to return or have since abandoned the premises after the storm hit because of the unrepaired damage.²⁶² Sufficiently meeting the abandonment element, a tenant in this circumstance is entitled to an appropriate remedy for the landlord’s breach of the covenant of quiet enjoyment. Remedies may include either release from the lease and any obligation to pay rent, or the tenant may regain possession of the property if the landlord is able to sufficiently repair the property.²⁶³

C. In Communities Frequented by Hurricanes, a Landlord May No Longer Rely on the Act of God Defense to Avoid Liability

Although landlords often raise an act of God defense in negligence actions, the warranty of habitability intersects closely with the duty element of a negligence claim.²⁶⁴ Namely, the standard of care that attaches to landlords defines the scope of what courts will hold a landlord responsible for under the warranty.²⁶⁵ In the context of hurricane damage following storms like Hurricane Florence and Hurricane Harvey, the elements of an act of God defense are no longer met. A successful defense includes both: (1) “unforeseeability” of the event by reasonable human intelligence and (2) an “absence of a human agency.”²⁶⁶

First, a landlord may not raise an act of God defense if a similar hurricane or natural disaster has caused damage in the past because the weather event and subsequent damage is foreseeable. Both human experience—by living through these storms—and advanced technology that accurately predicts oncoming hurricanes and related damage rebuts the first element of an act of God defense.²⁶⁷ Relying on an act of God defense to avoid liability under either the implied warranty of habitability or the covenant of quiet enjoyment will not prevail “if a similar event has occurred before, could be anticipated using modern techniques, or w[as] otherwise reasonably foreseeable.”²⁶⁸ In a reality where climate change bears a direct impact on weather patterns,²⁶⁹ hurricanes are sufficiently common and should thus be considered “normal climatic conditions,” for which landlords may not assert the act of God defense.²⁷⁰ Specifically, hurricanes like Florence and Harvey are no longer unprecedented, unlike the floods in Sutliff,²⁷¹ and are more akin to the foreseeable rains in Southern Pacific Co.²⁷² Moreover, landlords are on notice regarding the scope of damages following these storms, especially in places that have already been devastated by hurricanes like the coastal communities in North Carolina and Texas.²⁷³ Although Hurricane Florence and Hurricane Harvey may have been described as unprecedented at the time the storms made landfall,²⁷⁴ landlords in these communities have now been placed on notice regarding the breadth and scope of these storms and their potential impacts.²⁷⁵ Additionally, landlords, as general members of the community, have widespread access to forecasting information disseminated either by the National Weather Service or by local networks.²⁷⁶ When forecasting groups predict a hurricane, they can provide both information as to the intensity of the storm as well as the damage that is likely to result.²⁷⁷ Accordingly, a landlord may not rely on an act of God defense to avoid liability for damage caused by hurricanes.

Second, humans have played a significant role in the growing intensity and frequency of hurricanes, and therefore, the second element required by an act of God defense also fails. As demonstrated by scientific research and data, humans have hada direct impact on globally increasing temperatures,²⁷⁸ which in turn has resulted in increased severity and frequency of storms like Hurricane Florence and Hurricane Harvey.²⁷⁹ Notably, a recent study demonstrated how human influence on the climate directly caused the increased intensity of Hurricane Florence.²⁸⁰ Though less tangible, human interference with climatic conditions is comparable to human interference with a natural reservoir that led to flooding in Polack v. Pioche, thus demonstrating the presence of human agency and precluding the act of God defense.²⁸¹ Just as human action caused the embankment in Polack to be unable to withstand heavy rains, causing its failure to protect against subsequent flooding,²⁸² greenhouse gases emitted by humans has caused global warming and further instigated the increased severity of storms.²⁸³ Accordingly, it cannot be said that the increasingly severe and frequent hurricanes like Hurricane Florence and Harvey are “unaided by the hand of man.”²⁸⁴ In addition to the anthropogenic impact on storms, landlords’ failure to effectively weatherproof property could also be viewed as an example of human agency, further rebutting the absence of human agency claim.²⁸⁵ For example, experts deem hurricane shutters as a successful preventative measure protecting against hurricane damage.²⁸⁶ Courts have held that omissions on part of the landlord are the functional equivalent of a material act by the landlord.²⁸⁷ Just as the landlord’s failure to provide adequate parking in Coleman was a material act or omission, thus breaching the covenant of quiet enjoyment, failure to install hurricane shutters could also be considered a material act or omission by the landlord.²⁸⁸ A landlord’s decision to leave properties insufficiently weatherproofed demonstrates a failure to take agency in a situation that is predominantly under the control of a landlord.²⁸⁹

Finally, some tenants may face standing issues, specifically the causation element, when asserting breach of warranty or covenant claims or when successfully arguing that an act of God defense may not stand. As Supreme Court precedent in Massachusetts v. EPA and as the recent case Juliana v. United States, demonstrate, causation issues arising in climate change litigation have been overcome in certain scenarios.²⁹⁰ Just as the plaintiffs in Juliana have successfully alleged that the government’s failure to effectively mitigate and plan for climate change has caused injury to constitutionally guaranteed rights such as property,²⁹¹ and just as the plaintiff in Massachusetts v. EPA successfully alleged that a failure to reduce greenhouse gas emissions would attribute to sea-level rise,²⁹² tenants can overcome standing challenges by alleging that anthropogenic exacerbation of climate change has caused hurricanes to increase in size and frequency, thus instigating damage on rental properties. Since the court found that the plaintiffs in Juliana had plausibly met standing requirements, including causation, tenants are likely able to argue that humans’ role in climate change is substantially likely, and thus, the second element required for a successful act of God defense must fail.²⁹³

Conclusion

Under the warranty of habitability and the covenant of quiet enjoyment, landlords are responsible for damage to rental properties caused by hurricanes in coastal communities—like North Carolina and Texas—where intense hurricanes have ravaged rental communities. A landlord’s obligation under the warranty of habitability to maintain a premise is not eliminated simply because a defective condition is the result of a natural disaster. Additionally, because of advancing technology in weather prediction models, forecasting abilities, and increasingly advanced studies relaying the anthropogenic role in climate change and its potential impacts on communities, landlords have been placed on sufficient notice of these storms and their potential damage.²⁹⁴ Thus, a landlord is responsible for maintaining or repairing a property where damage has either been exacerbated or caused by hurricanes. If the landlord fails to do so, the tenant is entitled to rent abatement or other appropriate remedies as described in a state’s respective statute.²⁹⁵ Likewise, a tenant’s rights under the covenant of quiet enjoyment are not eviscerated in the wake of hurricane-caused damage. Finally, the main argument running counter to this Comment’s assertion rests with the act of Goddefense, which precludes a tenant from recovery when a non-manmade event is so extreme, unprecedented, and unpredictable that resulting damage may not be deemed foreseeable to the landlord—so long as the landlord did not contribute to the damage by an act or omission of his own.²⁹⁶ Following the wide impact of storms like Hurricane Florence and Hurricane Harvey in North Carolina and Texas, respectively, the act of God defense is no longer applicable.

Extending the implied warranty of habitability and covenant of quiet enjoyment to encompass hurricane-caused damage recalibrates these age-old property doctrines to effectively balance the rights of tenants and landlords through the course of tenancy.²⁹⁷ Implicit in these doctrines is the landlord’s responsibility to account for damage caused by natural disasters. Hurricanes do not wash away a tenant’s rights, and moving forward, landlords should be held responsible.

Landlords’ Responsibilities Under the Implied Warranty of Habitability and the Covenant of Quiet Enjoyment Extend to Hurricane-Caused Damage

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