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Willard v. Parsons Hill Partnership8/5/2005
habitability problem from someone other than a tenant. In light of this disparity, and of the fact that the RRAA contains no express language signifying that it was meant to apply to latent habitability defect cases, we conclude that the RRAA's enactment did not preempt common-law warranty of habitability actions involving latent defects of which a landlord already had actual knowledge. The common-law warranty of habitability against latent defects remained viable at the time that plaintiffs filed this case; thus, Hilder v. St. Peter, and not § 4458, controls.
28. We must also reject the trial court's conclusion that defendants fixed the problem within a reasonable amount of time. The court's error on this issue follows from its conclusion that notice from the tenants was required here. We have clarified that the relevant notice was that given by the State when it first notified Yvonne Rooney of the water's "Do Not Drink" status. Therefore, we think that the summary judgment record supports plaintiffs' contention that the partnership failed to remedy the habitability defect within a reasonable time after receiving the relevant notice.
29. In all other respects, we conclude that, for summary judgment purposes, plaintiffs have alleged and sufficiently supported a claim for a common-law breach of the warranty of habitability. A landlord's failure to comply with applicable housing code regulations can result in a breach of the warranty of habitability. 9 V.S.A. § 4457; see also Hilder, 144 Vt. at 160, 478 A.2d at 208-09 (declaring that violation of housing code provision related to tenant health and safety may be prima facie evidence of breach of the warranty of habitability). The state and federal governments established standards regulating the amount of PCE that drinking water may contain before it becomes unsafe for human consumption. Here, the Department of Health repeatedly issued "Do Not Drink" advisories over a fourteen-year period because the water that the partnership was providing to its tenants regularly failed to meet those standards. Accordingly, as the trial court stated, " t is obvious in this case that failure to provide potable water to a housing project would be a breach of the implied warranty of habitability."
30. Finally, we are unpersuaded by the trial court's view, shared by the dissent, that the tort remedies potentially available to the tenants for any personal injuries suffered before they learned that the water was contaminated are a sufficient substitute for their common-law warranty-of-habitability action. The warranty of habitability is an implied part of every residential lease contract, 9 V.S.A. § 4457; Hilder, 144 Vt. at 159-61, 478 A.2d at 208-09, and actions for its breach sound in contract, id. As with any breach-of-contract action, a tenant prevails by showing he received less than he bargained for because of a defendant's breach. In residential lease contracts, a plaintiff's damages are calculated by determining the difference in value between the agreed-upon rent for his unit in habitable condition, and the value of the same unit with habitability defects. Favreau, 156 Vt. at 229, 591 A.2d at 73.
31. In Favreau, we distinguished this recovery from a recovery for personal injuries under a negligence theory, recognizing that the law of negligence involves more difficult questions of causation and comes into play only when, as here, a plaintiff has sustained a personal injury. Id. at 230, 591 A.2d at 73. These causation issues can be especially difficult when, as in this case, the alleged source of the injury is an invisible toxin whose effects may take years to manifest. Favreau makes clear that a tenant may bring both a contract
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