I represented several renters who, as a result of the aftermath of Super Storm Sandy, did not have heat and water in their apartment. Are these renters obligated to pay rent during the time period in which they did not have heat and hot water? Can you please provide a brief FAQ?
1. What is the Implied Warranty of Habitability?
Pursuant to Section 235-b of New York Real Property Law, there is an Implied Warranty of Habitability (hereinafter the “Warranty”) in every residential lease requiring that the premises be fit for human habitation and for the uses reasonably intended by the parties. Under the Warranty, occupants may not be subjected to any conditions which are dangerous, hazardous or detrimental to their life, health or safety.
Tenants have the right to a livable, safe and sanitary apartment and the Warranty protects tenants from conditions that materially affect their health and safety. Examples of a breach of the Warranty include the failure to provide heat or hot water on a regular basis, water leaks and mold, plumbing issues, the lack of elevator service in a high-rise residential apartment house and the failure to eliminate insect infestation.
Although the landlord is not a guarantor of every amenity, the premises must be provided with those essential services which, in the mind of a reasonable person, a resident is expected to receive.
2. Does the Warranty apply to conditions caused by a natural disaster like Sandy?
The scope and breadth of the Warranty is far reaching and the Warranty applies to conditions which are beyond the landlord’s control such as acts of third parties and natural disasters. Since the warranty places an unqualified obligation on the landlord to keep the premises habitable, landlords must warrant against conditions occasioned by the work stoppage of employees, acts of third parties or natural disasters, such as Sandy.
3. Can a Tenant Waive the Warranty in a Residential Lease?
No. Any provision in a lease purporting to waive the Warranty is void against public policy. For instance, a clause in a residential lease limiting the landlord’s liability for causes beyond the landlord’s reasonable control will not prevent a tenant from claiming that the landlord breached the Warranty.
4. What is the Remedy if a Landlord Breaches the Warranty?
The most frequently applied measure of damages for the breach of the Warranty is rent abatement. If there is a breach of the Warranty, the tenant may sue for rent reduction, pay rent and affirmatively seek monetary damages or withhold all rent until the court determines the fair rental value of the premises. Please note that every tenant should consult with an attorney before availing themselves of the foregoing rights.
5. Does the Warranty Apply to Cooperative Apartments and Condominium Units which are sublet or rented out?
Yes. A sublease or rental creates a landlord-tenant relationship to which the Warranty would apply.
Neil B. Garfinkel,
REBNY Residential Counsel
Partner-in-charge of real estate and banking practices at Abrams Garfinkel Margolis Bergson, LLP