concurring in part and dissenting in part:
I find myself in basic agreement with the majority opinion that this Court may properly, as have other courts, fashion an implied covenant of habitability and determine what remedies are available under the doctrine.
However, it is in the area of the available remedies that I diverge from the majority opinion. I am distressed that the majority fails to accord the tenant the right to repair the defect and deduct this cost from his rent, a remedy that is almost universally accorded in this situation. I am further concerned that Syllabus Point 5,1 relating to the measure of damages, is not the correct damage rule and may ultimately cause much mischief.
I
I find the majority’s rejection of a repair and deduct remedy rather strange, particularly since there are no *407reasons given why this remedy should not be allowed. Most courts which have adopted the implied warranty of habitability doctrine have sanctioned this remedy.2
The implied warranty of habitability is bottomed on the premise that there are certain minimal standards of habitability arising from a residential lease which the law implies. This is analogous to the common law warranty or covenant of the landlord to keep the leased premises in a reasonable state of repair. The covenant to repair had to be expressly extended, but upon its breach by the landlord the tenant could, after due notice to the landlord, repair the defect and deduct the cost of repairs from his rent, as stated in 49 Am. Jur. 2d Landlord and Tenant § 842:
“It is well established that upon the breach by a landlord of his covenant to repair, the tenant may make the repairs and recover the reasonable expense or cost thereof from the landlord or charge it against the rent.”
This was not the only remedy available to the tenant where the landlord breached his covenant to repair. The remedies are summarized in 28 A.L.R.2d 446, 452 (1953), and bear a striking similarity to the remedies made available on breach of an implied warranty of habitability:
“In one recent case the court has summarized the remedies of a tenant where the landlord has breached a covenant to repair, as follows: ‘Three remedies are available to a tenant where a landlord fails to perform a lease covenant: (1) Upon the landlord’s failure of performance, the tenant can perform it at his own expense and defalk the cost of such performance from the amount of rent due and payable; or (2) The tenant can surrender the possession of the premises to relieve *408himself from any further payment of rent; or (3) He can retain possession of the premises and deduct from the rent the difference between the rental value of the premises as it would have been if the lease had been fully complied with by the landlord and its rental value in the condition it actually was.’ Siddall v. Burke (1940, Pa) 29 Del Co 530.”
This law is not foreign to our jurisdiction, as demonstrated by the case of Cheuvront v. Bee, 44 W.Va. 103, 105-106, 28 S.E. 751, 752 (1897):
“ ‘Where a landlord has agreed to repair the demised premises, and does not do so, the tenant has several remedies. He may abandon the premises, if by reason of the nonrepair they are rendered untenantable, or he may make the repairs, and deduct the cost from the rent. The tenant may also sue for damages.’ 12 Am. & Eng. Enc. Law, 727.... The tenant, however, having the right to make the repairs at the expense of, and charge them to, the landlord, and deduct them from the rent, could regard them as payments on the rent, and file an account thereof with his plea of payment. Or he could file his special plea of recoupment, in its nature a plea of offsets, limited to such sums as he had the right to recoup against the rent....”
Cheuvront also requires the tenant to give the landlord a reasonable notice to make the repairs before the tenant can undertake the repairs:
“Where the landlord covenants to repair, and neglects to do so, after having been notified, the tenant may, after a reasonable time, make the repairs and charge the landlord.” [44 W.Va. at 106, 28 S.E. at 752]
A repair and deduct remedy provides a simple and expeditious means of alleviating a breach of an implied warranty of habitability.3 It is not unjust to the land*409lord, since he must be given prior notice of the defect and an opportunity to repair it before the tenant can do so. It hardly seems likely that the tenant would be extravagant in his repairs, since it is his money that must be used initially.
II
Of more major concern is the damage rule announced in Syllabus Point 5, and more fully explained beginning at page 28 of the majority opinion. It is manifestly unfair to permit the tenant to recover damages based not on the actual rent he is paying, but on the hypothetical figure of the fair rental value of the property as it would be without any breach of the warranty of habitability.
The historical and fundamental rule underlying all compensatory damages is that the law seeks to redress for one’s actual losses, but not to bestow a profit on the injured party. 22 Am. Jur. 2d Damages §§ 11-18; 25 C.J.S. Damages § 17; 5B M.J. Damages §§ 7, 18. This is true whether the injury arises by virtue of a tort or breach of contract. Stenger v. Hope Natural Gas Co., 139 W.Va. 549, 561-66, 80 S.E.2d 889, 897-99 (1954); Horn v. Bowen, 136 W.Va. 465, 469, 67 S.E.2d 737, 739 (1951). While there may be some exceptions to this rule in the case of commercial contracts or leases where lost profits on the contract can be considered, certainly these considerations are not warranted in a purely residential lease. The doctrine of implied warranty of habitability is exclusively confined to residential leases.
Again, some analogy can be made to the measure of damages where there is a breach on the part of the landlord of his covenant to keep the premises in repair. Admittedly, some of the cases in this area are concerned with commercial property and may involve an element of an advantageous bargain on the actual rent, such *410that the courts are willing at times to permit a showing of value above the actual rent.
I do not believe this element can be considered with respect to an implied warranty of habitability on residential property. Without an extensive review of individual cases, I believe that where there is a breach of a covenant to repair, the rule is that the measure of damages is the actual rent less the rental value in the defective condition. 49 Am. Jur. 2d Landlord and Tenant § 844; 51 C.J.S. Landlord and Tenant § 373(5); Annot., 28 A.L.R. 1448 (1924); 28 A.L.R.2d 446 (1953). Indeed, the plaintiffs do not appear to contend for a different rule, since they state in their Brief at page 40:
“The plaintiff[s] submit[s] that absent a total breach, the plaintiffs] should be allowed a right of action or setoff of, at the option of the tenant, (1) the difference between the agreed rent and the fair market value of the premises in their defective condition, or (2) the percentage reduction of use and enjoyment.”
Furthermore, I am persuaded that this is the majority rule in those cases where the courts have adopted the doctrine of the implied warranty of habitability, as illustrated by Kline v. Burns, 111 N.H. 87, 93-94, 276 A.2d 248, 252 (1971):
“If a material or substantial breach of the imbed warranty of habitability is found, the measure of the tenant’s damages is the difference between the agreed rent and the fair rental value of the premises as they were during their occupancy by the tenant in the unsafe, unsanitary or unfit condition. In other words, the tenant’s rent liability will be the reasonable rental value of the premises in their condition while occupied. Pines v. Perssion, 14 Wis.2d 590, 597, 111 N.W.2d 409, 413 (1961); William J. Davis, Inc. v. Slade, 271 A.2d 412, 416 (D.C.Ct.App. 1970); 11 Williston, Contracts s. 1343 (3d ed. W.H.E. Jaeger 1968); see Coos Lumber Co. v. Builders Supply Co., 104 N.H. 404, 408, 188 A.2d 330, 332 (1963).”
See King v. Moorehead, 495 S.W.2d 65, 76 (Mo. App. 1973).
*411The majority cites Green v. Superior Court, 10 Cal.3d 616, 638-39, 111 Cal. Rptr. 704, 719, 517 P.2d 1168, 1183 (1974), which set its damage formula in a most peripheral fashion without analysis to any general damage rule. It relied primarily on Mease v. Fox, 200 N.W.2d 791, 797 (Iowa 1972).
Green did cite Boston Housing Authority v. Hemingway, 363 Mass. 184, 293 N.E.2d 831 (1973), and Academy Spires, Inc. v. Jones, 108 N.J. Super. 395, 261 A.2d 413 (1970), but they do not support the Green and Mease rule. Boston Housing suggested that the actual rent may be evidence of the value as warranted. [363 Mass, at 203, 293 N.E.2d at 845]
In Academy Spires, McKenna v. Begin, 362 N.E.2d 548 (Mass. App. 1977), and Glyco v. Schultz, 35 Ohio Misc. 25, 62 Ohio Ops.2d 459, 289 N.E.2d 919 (Sylvania Mun. Ct. 1972), the courts adopted a percentage reduction in the actual rent based on a reduction in the use of the premises resulting from the breach of the implied warranty, a point acknowledged by the majority in this case at page 29. This rule is not materially different from the one I have discussed.
By using the actual rent and deducting from it the fair rental value of the leased premises with the breaches of the implied warranty of habitability, a closer approximation of the actual damages incurred can be obtained. To use the majority’s illustration, if a tenant leased property at $150 a month and it was found that as a result of various breaches of the implied warranty of habitability its fair rental value is only $100 a month, then the tenant’s damages are $50 a month.
The majority would calculate the tenant’s damages at $100 a month based on the hypothetical fair rental value of the premises if there were no breach of the implied warranty of habitability, which is $200 a month, and subtract the value in its present state with the breach, which is $100. The tenant is not paying $200 in rent, but only $150, and thus he obtains $50 a month in damages over what he is actually out-of-pocket.
*412A moment’s reflection will reveal that there are residential apartments which a landlord will rent that are neither new nor in perfect condition, and as a consequence he is willing to take a realistic rental for them. He should not be penalized, nor the tenant rewarded, on the basis of a damage rule which begins with the basic assumption that the parties dealt on the theory that the apartment was without any defect or breach of an implied warranty of habitability. Common sense dictates an awareness that there are tenants who do not possess sufficient funds to rent an apartment which is completely free of any defects, and landlords who, because of modest financial circumstances, cannot offer the most modern residential apartments.
This more realistic damage rule does not mean that the tenant is waiving any breach of the implied warranty of habitability, since the rule relates only to the measure of damages he can recover from the landlord.
He can still utilize the breach of implied warranty of habitability as a defense to an action for unlawful de-tainer or as an offset by way of damages in the landlord’s suit for rent. He can leave the premises and end his obligation to pay rent or bring his own action for damages. What he ought not to be able to do is obtain monetary damages that bear no relationship to his actual rent when contrasted with the actual condition of the premises. This is completely contrary to any recognized rule for calculating compensatory damages.
I do not sense that the majority is holding that because there may be breaches of the implied warranty of habitability, the landlord may not regain possession of the premises upon the expiration of the term of the lease. This is the traditional function of an unlawful entry and detainer action to regain possession at expiration of the term. W.Va. Code, 55-3-1; Lewis v. Welch Wholesale Flour & Feed Co., 90 W.Va. 471, 111 S.E. 158 (1922); Hukill v. Guffey, 37 W.Va. 425, 450-56, 16 S.E. 544, 552-54 (1892), writ of error dismissed, 163 U.S. 690, 41 L. Ed. 306, 16 S.Ct. 1202 (1895).
*413At common law, in the absence of statute or an express provision in the lease, the non-payment of rent did not operate to confer on the landlord the right to regain possession of the premises. Gale v. Oil Run Petroleum Co., 6 W.Va. 200 (1873); 49 Am. Jur. 2d Landlord and Tenant § 1029. However, since the inception of this State, the right to re-enter for rent arrearage has been controlled by statute, W.Va. Code, 37-6-19, which permits re-entry through the use of an unlawful detainer action if the rent becomes in arrears. Kincaid v. Patterson, 129 W. Va. 234, 239-41, 39 S.E.2d 920, 924-25 (1946). It is this statutory authorization for the use of unlawful entry and detainer for the non-payment of rent which is interdicted by the implied warranty of habitability until the habitability-rent issue is settled.
Where the landlord seeks an unlawful entry and de-tainer to regain the possession of the premises on the basis that the term of the lease has expired, I would not view the implied warranty of habitability as preventing the exercise of such remedy.4
Based on the considerations that I have suggested, I do not believe the implied warranty of habitability does any great violence to our existing landlord-tenant law. Since the Legislature has left open the damage question in setting the various implied warranties of habitability under W.Va. Code, 37-6-30, it may be possible to rectify the damage rules espoused by the majority under this statute or an interpretation thereof.
“When the warranty of habitability is breached, the tenant’s damages are measured by the difference between the fair market value of the premises if they had been so warranted and the fair rental value of the premises as they were during the occupancy by the tenant in the unsafe and unsanitary condition. However, the tenant may additionally recover damages for annoyance and inconvenience proven to have resulted from the breach.”
See, e.g., Boston Housing Authority v. Hemingway, 363 Mass. 184, 192-93, 293 N.E.2d 831, 839 (1973); Marini v. Ireland, 56 N.J. 130, 146-47, 265 A.2d 526, 535, 40 A.L.R.3d 1356, 1367-68 (1970); Garcia v. Freeland Realty, Inc., 63 Misc. 2d 937, 314 N.Y.S.2d 215 (N.Y. City Mun. Ct. 1970); Pines v. Perssion, 14 Wis. 2d 590, 592-93, 597, 111 N.W.2d 409, 411, 413 (1961); Annot., 40 A.L.R.3d 1369 (1971).
Much the same remedy is embodied in Section 4.104(a)(1) of the Uniform Residential Landlord and Tenant Act, which has been adopted by twelve states:
*409“(1) [P]rocure reasonable amounts of heat, hot water, running water, electric, gas, and other essential service during the period of the landlord’s noncompliance and deduct their actual and reasonable cost from the rent; ...” [7A Uniform Laws Ann., at 542-43]
I avoid, as has the majority, expressing any view on the questions of a retaliatory eviction case. See, e.g., Robinson v. Diamond Housing Corporation, 463 F.2d 853 (D.C. Cir. 1972); Hosey v. Club Van Cortlandt, 299 F. Supp. 501 (S.D.N.Y. 1969); Alexander Hamilton Savings & Loan Association v. Whaley, 107 N.J. Super. 89, 257 A.2d 7 (1969); Dickhut v. Horton, 45 Wis. 2d 389, 173 N.W.2d 297, 40 A.L.R.3d 740 (1970).