Warranty of Habitability in New York

The Warranty of Habitability under the New York Real Property Law § 235-b provides residential tenants the right to live under habitable conditions. This law was enacted in 1975. Prior to 1971, residential leases relegated most of the responsibility for maintenance and repairs to the tenants. Fortunately for New York tenants, the New York State Legislature enacted the Warranty of Habitability in 1975 which continues to protect tenants rights until present day.

The Warranty of Habitability is an implied right in every residential lease, regardless of whether its actually written in the lease or not. Moreover, neither the landlord nor the tenant can agree to waive or modify the Warranty of Habitability. And if your lease happens to contain the language where you give up your right to a live in habitable, safe and clean apartment, the Courts will not enforce that part of the lease.

For instance, if your apartment lacks adequate heat or hot water on a regular basis, your landlord is in breach of Warranty of Habitability. If your apartment has a pest or rodent infestation and your landlord fails to cure the issue, than he or she is in breach of Warranty of Habitability. Keep in mind that in order for your landlord to be in breach of Warranty of Habitability, the unlivable, unsafe or unclean condition may not have been caused by you. Otherwise, you the tenant must cure the condition, not your landlord.

If your landlord is in breach of Warranty of Habitability, there are several things that you can do as a tenant. First and foremost, give your landlord written notice about the poor condition in your apartment and keep a copy of the written notice for proof. You can ask your landlord for rent abatement or credit towards your rent for poor conditions in your apartment. If the landlord refuses to work with you, you can bring suit against your landlord for rent reduction under the Warranty of Habitability. Also, you may withhold rent and not pay until the condition is cured.”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). However, if you withhold rent, your landlord may, and probably will sue you for non-payment of rent. In that case, you can countersue the landlord for breach of Warranty of Habitability. The Court will then decide what amount of credit (rent abatement) you shall receive towards your rental arrears.

“If your landlord is in breach of Warranty of Habitability, there are several things that you can do as a tenant.”

Another thing you can do is try to make the necessary repairs yourself and then subtract those repairs from your rent either by talking and negotiating with your landlord, or by taking the adversarial approach of suing your landlord for reduction of rent, or by withholding rent and waiting for the landlord to bring suit against you for non-payment of rent at which point you can counterclaim for breach of Warranty of Habitability.

New York landlords must keep apartments and common areas in good livable conditions, clean and free of pests, rodents, insects, garbage and other materials that interfere with habitable living. All electrical, plumbing, sanitary, heating and ventilating systems must be working. Also, any appliances that came with the apartment lease must be in good, safe and working order.

Remember, if you feel that your landlord is in breach of Warrant of Habitability, be sure to put the landlord on notice. Otherwise the landlord may claim that he did not know of the poor conditions and that is why the poor conditions were not cured.

If you are a tenant with Warranty of Habitability related issues, you might want to consult with a seasoned landlord/tenant lawyer who can advocate on your behalf with a landlord who is acting unreasonable and contrary to law.

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