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Warranty of habitability in NYC and what is considered a violation

warranty of habitability NYC

Warranty of habitability in NYC is implied even if it’s not written in a lease. It is deemed written in every written or oral lease contract and cannot be waived by any other agreement. The implied warranty of habitability in NYC warrants that the leased premises are:

  1. fit for human habitation;
  2. fit for the uses reasonably intended by the parties; and
  3. not dangerous, hazardous or detrimental to the life, health, or safety of the occupants.

Tenants’ options in cases of breach of warranty of habitability in NYC

In cases of breach of the warranty of habitability, a tenant has the following options:

  1. reporting the incident to the Department of Housing Preservation and Development by calling 311;
  2. suing the landlord for repairs or rent abatement;
  3. making the repairs himself and deduct it from the rent owed to landlord; and
  4. withholding rent.

Reporting to public officials

Reporting violations to HPD by calling 311 is a good option for tenants in cases of breaches of the warranty of habitability. HPD can inspect and issue notices of violation. In case the landlord still refuses to make any correction or repairs, there will be public documentation of the violations which can be submitted already to the courts. HPD can also impose fines until the landlord corrects the violation.

Suing the landlord

Suing the landlord to compel him to repair something or provide essential services can be done without legal representation by filing a HP action. The tenant can simply begin the process by going to the Clerk’s office at the Housing Court to fill out the forms.

The tenant can also sue the landlord for breach of the warranty of habitability with the Civil Claims Court. The tenant can claim for rent abatement from the time the hazardous conditions arose. Legal counsel is needed in this case.

Withholding rent

The tenant may also withhold rent until the landlord addresses the problems. However, the landlord will likely sue the tenant for non-payment. The tenant can raise the defense of breach of warranty of habitability and counterclaim for rent abatement. In this case, the tenant also needs to secure the services of a lawyer who can assist in negotiating a larger rent abatement.

Making the repairs and deducting from rent

It is important to seek counsel in carrying out this option. Repairs should only be made by the tenant in emergency situations and only after giving the landlord written notice, and the problem remains uncorrected. The written notice to landlord, the receipts for the repairs, and photographs are all important in case the landlord disputes the cost of the repair as a deduction from the rent.

What is considered a violation of warranty of habitability in NYC

The Department of Housing Preservation and Development have classified three types of housing violations based on the level of its hazardous conditions.

Class A violations are non-hazardous violations which should be remedied 90 days from mailing of the notice of violation. Examples of Class A violations are no peephole in the entrance door of the dwelling unit; no street number on the front of the dwelling; and keeping of pigeons and chickens unlawfully.

Class B violations are hazardous violations which must be corrected within 30 days from mailing of the notice of violation. Examples of Class B violations are inadequate lighting facilities for public halls or stairs; no provision for smoke detector in dwelling unit; and unlawful bars or gates on windows opening to fire escapes.

Class C violations are immediately hazardous violations which must be corrected within 24 hours from mailing of the notice of violation. New York courts have also granted a reduction of rent in some of these cases, which have been considered a breach of the warranty of habitability in NYC. Examples of Class C violations are inadequate supply of heat and water, rodent infestation, peeling lead paint in dwellings where a child under 7 resides, and broken or defective plumbing fixtures.

Although above are considered HPD violations, these violations, alone, do not constitute a breach of implied warranty of habitability in NYC. To understand what is a breach of the warranty of habitability that would justify a reduction of rent, a review of New York court decisions is proper.

Court interpretation of warranty of habitability

New York courts have awarded rent abatement in the following instances of breach of warranty of habitability, to name a few: (a) elevator service problems in a high-rise residential building (Solow v. Wellner, 86 N.Y.2d 582 (1995)); (b) dangerous construction in the common areas, interfering with tenants’ ability to use and enjoy possession of the leased premises (Minjak Co. v. Randolph, et. al., 140 A.D.2d 245 (1988)); (c) lack of heat and hot water and severe roach and insect infestation (Morbeth Realty Corp. v. Velez, 73 Misc.2d 996 (1973)); (d) excessive noise from another apartment (In Re: Nostrand Gardens Co-Op v. Howard, 221 A.D.2d 637 (1995)); and (e) water leaks, roaches, unrepaired light switches and door knobs, broken window frames, and defective insulation (Morbeth Realty Corp. v Rosenshine, 67 Misc.2d 325 (1971)).

Evidence required in breaches of warranty of habitability

In any lawsuit raising the breach of warranty of habitability, whether it is an affirmative lawsuit against the landlord or a defense raised in a case for nonpayment of rent, the tenant should always be armed with sufficient evidence to successfully litigate a claim for breach of warranty of habitability in NYC.

First, the tenant should have sent a written notice to the landlord, detailing the problems and repairs that need to be corrected and addressed. The tenant should follow the method of sending the written notice, as stated in the lease contract. If the lease contract is silent, it is best to send the written notice to the landlord via certified or first-class mail with return receipt requested. Sending a courtesy copy via e-mail (in addition to sending it via certified or first-class mail) is also recommended.

Second, photographs and videos of the problems should be taken. This will serve as documentation which can be presented in the court at a future time. Make sure to include a photo or video of the front page of the daily newspaper together with the apartment problem so there can be no dispute as to the date the breach of warranty of habitability occurred.

Third, if violations have been reported to HPD, get certified copies of inspections and notices of violation from the local government. This will provide additional evidence that violations have been reported and verified, and notices of violation have been issued and remain uncorrected by the landlord.

Fourth, if emergency repairs have been undertaken, keep all the original official receipts.

The legal basis of warranty of habitability in NYC

The legal basis for implied warranty of habitability in NYC can be found in Real Property Law § 235-B, which states as follows:

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.

Allegations of breach of warranty of habitability in NYC are common  because most apartments in NYC are occupied as renters. For rent-stabilized apartments, it is likely that landlords may refuse to repair the leased premises in order to force the renter to vacate the unit so it may be rented out to a lessee who can pay a higher amount of rent.

In cases of breaches of warranty of habitability in NYC, it is important to seek the services of counsel in order to protect and preserve your rights. For tenants, it is to recover rent that may have already been paid, or receive an abatement on future rent, and for landlords it is to avoid losing rent or having to make expensive repairs.

Should you need legal representation in this regard, whether as a tenant or as a landlord, we at the Law Offices of Albert Goodwin are here for you. We have offices in Manhattan, Brooklyn and Queens. You can call us at 718-509-9774 or email at attorneyalbertgoodwin@gmail.com.