The Attorney General argues that a residential lease of real property is a package of “goods or services” and that it therefore is included in the deceptive practices provisions of the CCPA. In support of this argument, the Attorney General cites this Court’s ruling in Teller v. McCoy, 162 W.Va. 367 , 253 S.E.2d 114 (1978), arguing that the Court concluded .that a residential lease is a contract for a bundle of goods and services. By contrast, Defendant Landlord asserts that the legislature chose to define “trade” and “commerce” narrowly and that it limited application of the deceptive practices provisions to transactions involving goods and services.

See W. Va. Code § 37-6-30. Further, if we conclude that West Virginia Code §§ 37-6-30 and 16-16-2, when read in pari materia, do not impose a duty upon the Appellee to protect the Appellant from the criminal acts of a third party, then neither does this Court's decision in Teller v. McCoy, 162 W. Va. 367, 253 S.E.2d 114 (1978), which established an implied warranty of habitability when "[t]here is, in a written or oral lease of residential premises, an implied warranty that the landlord shall at the commencement of a tenancy deliver the dwelling unit and surrounding premises in a fit and habitable condition and shall thereafter maintain the leased property in such condition." Id., 253 S.E.2d at 116, Syl.Pt. 1; see Walls v. Oxford Management Co., 137 N.H. 653, 659-61, 633 A.2d 103, 107 (1993) ("[T]he warranty of habitability implied in residential lease agreements protects tenants against structural defects, but does not require landlords to take affirmative measures to provide security against criminal attack.").

The "majority of the courts which permit rent withholding" leave the imposition of an in custodia legis procedure to the sound discretion of the trial court. Restatement (Second) of Prop.: Landlord & Tenant § 11.3, at 377 (Am. Law Inst. 1977); see alsoTeller v. McCoy , 162 W.Va. 367, 253 S.E.2d 114, 129 (1978) ("[S]everal courts have held that the trial court, upon request, after determining that a fact questions [sic] exists as to a breach of warranty of habitability, may , during the pendency of the action, require the tenant in possession to make future rent payments or part thereof unto the court as they become due.") (emphasis added); Robert S. Schoshinski, American Law of Landlord and Tenant § 6:15.10, at 507, 510-11 (Supp. 2018) (collecting numerous cases in which trial courts "without statutory authorization" have the discretion to impose an in custodia legis procedure).

In fact, NFPA 921 itself provides that its procedures are not compulsory, expressly stating in § 1.3 that “[d]eviations from these procedures, however, are not necessarily wrong or inferior but need to be justified.”See W.Va. Code § 29–3–5(b) (2013) (stating, in part, that “the State Fire Commission shall propose and promulgate comprehensive rules for the safeguarding of life and property from the hazards of fire and explosion to be known as the State Fire Code.... Whenever any new or revised code or standard is adopted by the fire codes published by the National Fire Protection Association, the State Fire Commission may propose and promulgate revised rules reflecting such updated codes and standards”); Teller v. McCoy , 162 W.Va. 367, 375, 253 S.E.2d 114, 120 (1978) (noting that State Fire Commissioner's regulations include National Fire Code published by the National Fire Protection Association).See also W.Va. C.S.R. § 87–1–2 (2014) (adopting NFPA 1 Fire Code (2012) which expressly states that its purpose is “to prescribe minimum requirements necessary to establish a reasonable level of fire and life safety and property protection from the hazards created by fire, explosion, and dangerous conditions” and which incorporates by reference other NFPA standards but not NFPA 921); W.Va. C.S.R. § 87–4–4 (2013) (adopting certain NFPA provisions with respect to the State Building Code); W.Va. C.S.R. §§ 87–8–1 to –8 (2015) (referencing NFPA provisions concerning training levels, curriculum approval, and equipment standards in relation to volunteer firefighters).

Id. at 423. In Teller v. McCoy, 162 W. Va. 367, 253 S.E.2d 114 (1978), this Court addressed the argument that certain implied habitability rights can be waived and concluded that "since '[i]t is fair to presume that no individual would voluntarily choose to live in a dwelling that had become unsafe for human habitation' Bowles v. Mahoney, 91 U.S.App.D.C. 155, 161, 202 F.2d 320, 326 (1952) (Bazelon, J. dissenting) we hold that waivers of the implied warranty of habitability are against public policy." Id. at 395, 253 S.E.2d at 130-31.

II. This Court in Syllabus Points 1 and 2 of Teller v. McCoy, 162 W. Va. 367, 253 S.E.2d 114 (1978), adopted the doctrine of implied warranty of habitability as to residential housing: "1. There is, in a written or oral lease of residential premises, an implied warranty that the landlord shall at the commencement of a tenancy deliver the dwelling unit and surrounding premises in a fit and habitable condition and shall thereafter maintain the leased property in such condition.

On appeal the appellant's first assertion is that the trial court erred in ordering him to relinquish possession of the premises before determining whether Mr. Jaroush had breached the implied warranty of habitability. In Teller v. McCoy, 162 W. Va. 367, 253 S.E.2d 114 (1979), we recognized that in West Virginia there is an implied warranty that a landlord of residential premises shall, at the commencement of a tenancy, deliver the dwelling unit and surrounding premises in a fit and habitable condition and shall thereafter maintain the property in such condition. We also said:

Some courts have allowed damages for, emotional distress in a breach of the warranty of habitability case. In Teller v. McCoy (1978) 162 W.Va. 367 [ 253 S.E.2d 114], the court explained that the damages from the reduction in use are not appropriate in a residential landlord tenant case because the "residential tenant who endures a breach of the warranty of habitability normally does not actually lose only money. The typical residential tenant rents a dwelling for shelter, not profit.

While we are not aware of any reported Pennsylvania cases on this issue, we are persuaded by the reasoning presented by the highest courts in two other states that damages for breach of the implied warranty of habitability may include claims for "deprivation and humiliation." The first of these cases involved a proceeding presented by certified question to the West Virginia Supreme Court, Teller v. McCoy, 162 W. Va. 367, 253 S.E.2d 114 (1978). In that case, the West Virginia Supreme Court joined Pennsylvania and many other jurisdictions in rejecting the doctrine of caveat emptor in the context of landlord-tenant relations, and held that a warranty of habitability is implied in every residential lease.

E.g. , AS 34.03.300 (authorizing award of actual damages or one month's period rent for landlord or tenant's violation of provisions governing landlord's right of access to dwelling).Hilder v. St. Peter , 144 Vt. 150, 478 A.2d 202, 209 (1984) (holding that residential lease creates contractual relationship between landlord and tenant such that "standard contract remedies ... are available to the tenant when suing for breach of the implied warranty of habitability," while also holding that damages should be allowed for tenant's discomfort and annoyance due to landlord's breach); Teller v. McCoy , 162 W.Va. 367, 253 S.E.2d 114, 127-28 (1978) (explaining that although residential lease is a contract and "common law remedies for breach are applicable," courts have had "great difficulty formulating an appropriate measure of damages applicable to a breach of implied warranty" and ultimately concluding that tenant may recover damages for annoyance and discomfort).