Evaluating Commercial Leases Post-'Rohrmoos'

Prior to Rohrmoos the Texas Supreme Court first held in Kamarath v. Bennett, 568 S.W.2d 658, 660-61 (Tex. 1988), that a residential tenant may withhold rent if the landlord breaches the implied warranty of habitability. The court did not address recission as a remedy, and it noted there was no evidence that the tenant waived the implied warranty of habitability in the oral lease. Later, in Davidow v. Inwood N. Pro. Grp., 747 S.W.2d 373, 376-77 (Tex. 1988), the court extended Kamarath to commercial leases, finding an implied warranty of suitability exists in commercial leases except where the parties "expressly agree that the tenant will repair certain defects[] …." The court also noted the longstanding rule in Texas that "landlord's covenant to repair the premises and the tenant's covenant to pay rent are independent covenants." Id. at 375.

Accordingly, while Davidow recognized an implied warranty of suitability in commercial leases, it did not undo the independent covenant doctrine. If the court had intended to do so, it would not have held the implied warranty could be expressly waived, since a material breach by the landlord would always justify recission without the independent covenant doctrine, whether or not the implied warranty was breached.