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Tenants' Rights 101: The Warranty of Habitability in New York

Nick Moccia is an attorney admitted to practice in the courts of the State of New York.

New York tenant's rights can be tricky. Read on to learn more.

New York tenant's rights can be tricky. Read on to learn more.

Warranty of Habitability

Every lease for residential property impliedly contains what's called the "Warranty of Habitability."

What the Warranty of Habitability Implies

  1. That the premises are fit for human habitation;
  2. That the condition of the premises is in accord with the uses reasonably intended by the parties; and
  3. That the tenants are not subjected to any conditions endangering or detrimental to their life, health, or safety.’

What If a Landlord Breaches the Warranty of Habitability?

If a landlord breaches the Warranty of Habitability, a tenant does not have to pay rent to a landlord. "The obligation to pay rent is dependent upon the landlord's satisfactory maintenance of the premises in habitable condition" (Park West Management Corp. v. Mitchell, 47 N.Y.2d 316).

Furthermore, if your landlord takes you to court because you owe rent, judges regularly grant tenants a reduction in the arrears if the judge finds there was a breach of the Warranty of Habitability.

Also, although landlords often add unenforceable clauses to leases in order to intimidate tenants from seeking to enforce their rights, you are not always required by law to obey these unenforceable clauses, even if you signed the lease.

Lastly, the law does not permit a waiver of this warranty in the lease. If your landlord attempts to do so, such a waiver in unenforceable as contrary to public policy.

Determining Whether Warranty of Habitability Has Been Breached

To determine whether your landlord has breached the Warranty of Habitability, you have to ask yourself the following question:

Would a reasonable person consider such defect(s) a deprivation of those essential functions which a residence is expected to provide?

(Operative language: "deprivation of essential functions." In other words, does the present condition of the space prevent you from using it for its intended purpose?)

The following have been considered to be breaches of the Warranty of Habitability in the State of New York.

Breaches of the Warranty of Habitability in New York State

  • Asbestos which could become air-borne in the tenants' apartment.
  • Decrease in or lack of elevator service.
  • Broken floor tiles which create a hazardous condition.
  • Substantial accumulations of garbage that lead to infestations of insects or vermin.
  • Failure to provide heat and hot water for extended periods.
  • Severe infestation of insects and vermin.
  • Lead-based paint, especially where small children reside.
  • Deprivations of air, light, and/or ventilation.
  • Excessive noise as from construction, mechanical equipment, or even neighboring tenants when the landlord fails to take effective steps to abate the nuisance.
  • offensive fumes and odors.
  • Defective plumbing.
  • Inadequate security (e.g. damaged entrance locks, door buzzers, etc.).
  • Sewage leaks and spills.
  • Failure to provide smoke detectors.
  • Disruptions in water service.
  • Lack of window guards when required by local ordinances to protect children.
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Invoking the Breach of Warranty of Habitability

The single most important thing to remember about invoking the breach of warranty of habitability as a defense in a landlord/tenant proceeding is that you give notice in writing to your landlord regarding the defective condition in your space. If he is not given notice and does not have a reasonable opportunity to rectify the situation, you may lose your right to invoke the warranty of habitability.

A best practice is to send written notice according to the terms of your lease, or if your lease does not specify, send written notice via first class mail return receipt requested as well as a courtesy copy via e-mail or facsimile.

New York State Real Property Law s. 235-b

The Warranty of Habitability

  1. In every written or oral lease or rental agreement for residential premises the landlord or lessor shall be deemed to covenant and warrant that the premises so leased or rented and all areas used in connection therewith in common with other tenants or residents are fit for human habitation and for the uses reasonably intended by the parties and that the occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety. When any such condition has been caused by the misconduct of the tenant or lessee or persons under his direction or control, it shall not constitute a breach of such covenants and warranties.
  2. Any agreement by a lessee or tenant of a dwelling waiving or modifying his rights as set forth in this section shall be void as contrary to public policy.
  3. In determining the amount of damages sustained by a tenant as a result of a breach of the warranty set forth in the section, the court; (a) need not require any expert testimony; and (b) shall, to the extent the warranty is breached or cannot be cured by reason of a strike or other labor dispute which is not caused primarily by the individual landlord or lessor and such damages are attributable to such strike, exclude recovery to such extent, except to the extent of the net savings, if any, to the landlord or lessor by reason of such strike or labor dispute allocable to the tenant's premises, provided, however, that the landlord or lesser has made a good faith attempt, where practicable, to cure the breach. (c) where the premises is subject to regulation pursuant to the local emergency housing rent control law, the emergency tenant protection act of nineteen seventy-four, the rent stabilization law of nineteen hundred sixty-nine or the city rent and rehabilitation law, reduce the amount awarded hereunder by the total amount of any rent reduction ordered by the state division of housing and community renewal pursuant to such laws or act, awarded to the tenant, from the effective date of such rent reduction order, that relates to one or more matters for which relief is awarded hereunder.

Landlord/Tenant Cases in Brooklyn, Manhattan, Queens, Staten Island, and the Bronx

The Housing Court in Brooklyn is located at 141 Livingston Street. If you receive a notice in the mail requiring your appearance, it is imperative that you respond and take appropriate action immediately. This includes documenting any conditions in the building that may constitute a breach of the Warranty of Habitability.

If you have any questions about your case, please feel free to give me a call at 718-701-5772.

If you need representation on a landlord/tenant matter, I handle appearances in all five boroughs of the City of New York (Manhattan, Brooklyn, Queens, Staten Island and Bronx). I am usually in Brooklyn (Kings County).

I am able to make appointments in Brooklyn and Manhattan locations upon request.

Case Updates

Landlord v. Tenant, 2011 NY Slip Op 52490(U) (Weschester County June 13, 2011) (where Westchester Court found disturbances due to the landlord's construction on neighboring lot to be a breach of warranty of habitability).

The Court finds Landlord breached the warranty of habitability for the construction period commencing the last week in February 2011. In 487 Elmwood v. Hassett, supra, the Court granted a rent abatement based on the noise, vibrations and dust caused by jack hammering and other construction. Forest Hill v. Schimmel, supra, holds in relevant part that where there are conditions which frustrate the reasonably intended use of a Garden Apartment's outdoor common area the tenant is entitled to a rent abatement.

For purposes of warranty of habitability the Court finds Tenant met her burden. The Court credits her testimony, which includes vibrations during jack hammering, mud, uncontroverted testimony regarding porta potty odor, and unpleasantries. Landlord claims Tenant renewed her lease subject to the construction because of his early conversation with Tenant. However any conversation regarding "future" construction with Tenant was vague, not at all intended to inform her of legal consequences and not sufficient notice under the law. In addition Tenant's photographs speak for themselves regarding diminution of value. Accordingly the Court finds the Tenant is entitled to a 20% rent abatement from the last week in February 2011.

This article is accurate and true to the best of the author’s knowledge. Content is for informational or entertainment purposes only and does not substitute for personal counsel or professional advice in business, financial, legal, or technical matters.


NomoreABUSE60 on November 13, 2018:


I have had it with Property Mangement abuse and lying! This will be my third round with slumlords since my disability. My disability is due to slipping on ice because of faulty gutters.

There is a housing shortage, especially in my county. I had a beautiful apartment and a lovely landowner for two years, and unfortunately, he had to sell. He sold the house to the Devil’s Spawn! He took away my storage, all of it. I was too sick to be on top of it, and he rented a storage unit twice the size and expense needed. I had to pay $148.00 for three months last winter for the sale of this house. The next gift given, was a text stating I overpaid my rent! Smiley emojis all over the text, how wonderful, you will have $126.00 more in my account. It was a ploy. She showed up with a check and a notice of non renewal of my lease. I have been homeless since July 25th, 2018, living with my X in his tiny one bedroom.

No one wanted to rent to me. I live in a tight neighborhood and small city, where I know many people. I have CRPS and Chronic Lyme Disease. I also have a masters degree. Moving forward...

I found an apartment on a gorgeous piece of property, and the river views make it possible for these people to rent this property to low income and younger people. Because of being disabled and living on a fixed income, I am grateful to receive housing benefits from HUD.

The apartment was inspected and it passed. What went unnoticed by the inspector, my 30 year old Son, a friend and myself,,,the apartment has No Bathroom Sink! Unfortunately, when I picked up the key, I put down $950.00 on this apartment. I met one of the neighbors, who told me that the apartment had no sink. I was floored. What an idiot I am.

Now what! They won’t give me the deposit back. This is not over, and I’m tired of writing, so I will end here. Please, give me advise. Thank you. Be well.

Jenna on September 27, 2018:

Hello, I started renting a home located 20 feet from a main road that intersects with another main road. The home has a stop light right in front for both of the streets.

Since I'm not from this area, and was told that the home is not affected by the traffic I ended up renting it. Let me say renting this home was the WORST thing that I ever could have done! Traffic from constant 18 wheelers that haul steel 24 hrs a day, vibrates my hole house when they stop & go. Then to make matters worse, there's a old fire station close by that sounds these horrific alarms off 4 times at all day & night. Even at 3:30 am that wakes me & my children up out of a dead sleep. I've put loud fans two plus ac units in our rooms and still hear the noises. There's no privacy and cannot get out of my own driveway, due to cars & trucks blocking me in. Isn't that against the law to have vehicles block you in? I've called left several voice mails to only be ignored & disrespected by landlords assistant. I asked the assistant to please allow me to put a fence up to block some noise and her response was I had to pay for it. That didn't go over well with me! I also have several leaks causing my water bill to skyrocket but yet this slum lord wants $1,100 for a old broken down shack located 20 feet on a main road. Just say I'm buying a home soon and he will have a rude awakening because no one in their right mind would rent this horrible place.

Kathleen on September 12, 2018:

Our apartment is infested with mice and Roaches. Our landlord will get pissed if we call and say we can move if we don't like it. There is no heat in the master bedroom not the back bedroom. The windows are very hard to close and the house looks horrible. There's is a very strong urine smell that will not leave in the back bedroom. Everytime we ask for him to fix anything we get threatened to get kicked out. My carriers are coming up there's glad under them. What can I do? My mother is disabled I have a nice month old daughter and I have really bad asthma. The mice eat through everything there's poop everywhere. I'm at a total loss and I'm in desperate need of help.

brian P. Atkinson on September 10, 2018:

My landlord Ms. Lauren V. Walling of Beacon New York proceeded to conduct residential renovations which involved disturbing asbestos insulation for an on going period of two months . The Asbestos Control Group of Dutchess County suspended the project on 8/28/18.

Alisha on January 07, 2018:

I have a landlord that pumped my septic in freezing cold conditions but refuses to realize the bk up in my home plumbing needs clearing as well all the bk up froze and noe we use a bucket to relieve ourselves is this legal or right tomorrow will be five days like this can't run water in sinks or toilets over flow help legal advice please