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the law conform at last to reality. The court recognized that residential tenants are in the market for a service, not a property interest; that the service they are buying is the provision of a safe, sanitary dwelling with all its essential facilities in working order; and that landlords, who know this is what renters are after, should be obliged to fulfill their side of the implied bargain. “The major complaints tenants have deal with repairs,” says George Stone of the Texas Tenants Rights Organization, and the Kamarath ruling gave them unprecedented grounds for damage suits against landlords who won’t remedy basic defects in their rental property. The victory for tenants’ rights took on even greater significance when it was realized that the implied warranty of habitability could be enforced through the Deceptive Trade Practices Actspecifically, through a section of it that authorizes consumers and tenants to sue for any breach of warranty and collect triple damages and attorneys’ fees. Though this dovetailing of the Kamarath warranty and the DTPA has yet to be tested, both tenants’ lawyers and representatives of the Texas Apartment Association, the state’s principal landlord group, say that it is likely to hold up in the courts. The Kamarath decision also leaves open the possibility that a landlord’s efforts to evict a non-paying tenant could be thwarted if there is a dispute over essential repairs. Although the landlord could still call the tenant to account in an eviction proceeding for:his failure to pay rent, some legal scholars have suggested that the disrepair of a dwelling could be an adequate defense. The landlords regroup Most tenants are probably unaware of their improved legal position, but the Texas Apartment Association and other landlord groups have been quick to grasp the import of the shift in the law, and it is not to their liking. Lyle Johansen, executive director of the TAA, says that his organization doesn’t oppose the warranty of habitability in principle, but he deplores what he perceives as the vagueness of the Kamarath decision: “Can you define what makes a place unfit or unsanitary? The court couldn’t. If you could come up with an exact definition, you probably could make a lot of money.” The TAA is trying to undo the damage to the landlord’s position in two ways: by inserting a waiver-of-warranty clause in the standard lease it draws up for use by Texas landlords, and by lobbying for statutory limitations on the warranty’s scope. As soon as Kamarath was handed down, the TAA amended its standard lease form to incorporate an extra clause requiring that tenants expressly surrender their right to sue for breach of the warranty of habitability. The Supreme Court refrained from deciding in Kamarath itself whether such a waiver would be valid, but one reason the court cited for creating the warranty in the first place was the usual disparity in bargaining power between landlords and tenants, and nowhere is that disparity more blatant than in form leases offered to renters on a take-it-orleave-it basis. Thus, the TAA waiver clause looks vulnerable on the ground that it is unconscionablethat is, so utterly unfair to tenants and subversive of public policy that the courts won’t enforce it. The TAA stands a better chance of neutralizing the Kamarath ruling in the Legislature. As this article went to press, no measure specifically designed to accomplish the TAA’s purpose had yet been introduced, but an informed observer reported that Rep. Doug McLeod of Galveston would be placing the landlords’ bill in the hopper no later than March 9. It can be safely presumed that this bill will focus on narrowing the definition of “habitability.” While the TAA tackles the warranty of habitability directly, the business lobby as a whole will be pressing its all-out attack on the Deceptive Trade Practices Actan effort which, besides eliminating mandatory triple damages for misrepresentations by businesses, would also delete the section of the DTPA that permits deceptive trade practice suits based on the breach of an rent to tenants’ habitability suits would be set up by measures \(sponsored by Sen. Bill Moore of Bryan and Rep. Dan Kubiak lawsuits the basis for imposing potentially onerous liability on consumer plaintiffs. Other voices In the midst of the noisy offensives launched by the business lobby, pro-tenant legislators are trying to get a hearing for measures of their own to buttress and even extend the protection tenants won in court last year. The most ambitious of these has been filed by Houston Rep. Ron Waters, who led the unsuccessful fight for habitability legislation last session. Waters’ House Bill 215 sets out a generous catalog of habitability requirements \(including an innovative and praiseworthy prescription that all dwellings be insulated to assure energy conservaThe Waters bill, together with a companion measure recently introduced in the Senate by Gene Jones of Houston, would expressly condition the tenant’s duty to pay rent on the landlord’s compliance with the warranty of habitability. Tenants would be authorized not only to cite the landlord’s noncompliance as a defense in eviction suits, but also to deduct from their rent the reasonable cost of repairs they end up having to make at their own expense. The bill would also render waiver clauses like the TAA’s unenforceable, and would bar landlords from retaliating \(with threats of eviction, service cuts, rent inright to a habitable dwelling. Thus, the Waters proposal would give tenants and landlords a clear idea of what they may and may not do, and would foreclose possible unfavorable court rulings on the waiver and landlord retaliation issues. Another veteran of the fight for tenants’ rights legislation in 1977, Rep. Sam Hudson of Dallas, has revived a set of bills he introduced last session that would do many of the same things Waters has proposed, but Hudson’s HB 80 would give tenants one additional protectionit provides that landlords must notify tenants who have departed from rented premises of any plan to remove belongings they may have left behind. The only other noteworthy landlord-tenant bill is also the handiwork of one of the reformers of ’77, but this bill, Houston Rep. Henry Allee’s HB 14, is a curious entry that tenants’ rights groups have already disavowed. Allee’s bill does impose on landlords the duty to repair, but it hinges renters’ right to sue over unlivable conditions on compliance with a laundry list of “tenant’s duties,” and its enforcement section combines a restrictive construction of common law remedies with toothless innovations. Even Allee has backed off from this bill, which he evidently intended as a compromise between the anticipated preferences of tenants and landlords, but which had the effect of antagonizing partisans of both groups because it prejudged the outcome of their negotiations and left no maneuvering room. The latest word from the Capitol is that HB 14 is dead, and Allee has released the bill’s co-sponsor, Rep. El Franco Lee of Houston, from his commitment to support it. If a landlord-tenant compromise bill does eventually emerge, its terms will probably be drawn from the Waters proposal and the TAA-supported bill that Representative McLeod is expected to introduce. There is clearly little likelihood that the Waters bill could pass without damaging modification; some of its backers are convinced, though, that they have the votes to kill any bill that would make things worse for tenants. But, while the official position of groups like the Texas Tenant Rights Association is to press for legislation, some tenants’ advocates, soberly contemplating the intensity of the business lobby’s attack on consumer laws, will concede off the record that their best bet this session may be to tight for the postKamarath status quo. Sarah Scott is a recent graduate of Bates College of Law of the University of Houston. THE TEXAS OBSERVER 7