Tenants' Rights 101: The Warranty of Habitability in New York
Disclaimer: The following information applies to New York State and should not be construed as legal advice, but as a means whereby tenants may increase their awareness about the rights they have as a matter of law with regard to their leasehold interest in a particular piece of property. If you are having an issue with your landlord, I suggest you seek competent counsel to ensure that your rights are properly adjudicated. The publisher of this article and its contributors disclaim responsibility for any damages that may result from any error, inaccuracy, or omission contained herein.
Warranty of Habitability
Every lease for residential property impliedly contains what's called the "Warranty of Habitability." This means that every landlord impliedly warrants the following:
- That the premises are fit for human habitation;
- That the condition of the premises is in accord with the uses reasonably intended by the parties; and
- That the tenants are not subjected to any conditions endangering or detrimental to their life, health, or safety.’
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:
- 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.
Please note, however, that any conditions caused by the misconduct of a tenant or by persons under the tenant's direction or control do not trigger a breach of warranty.
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
- 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.
- 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.
- 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.
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.