Tenant Rights in NYC- What is the Warranty of Habitability?

The PropertyClub Team
Jun 30th 2019
According to Real Property Law 235-B, there is an implied warranty of habitability in every New York City lease. This covenant requires that the landlord maintain apartments so that they are fit for human occupancy, that all things work as expected and that no conditions in the apartment exist that may harm or even kill the tenant. Additionally, the implied warranty of habitability applies to the common areas of any building. A landlord’s implied warranty of habitability cannot be waived orally or in the tenant’s lease agreement, as that would go against public policy and any such attempted waiver unenforceable by the court.

What type conditions are in breach of a landlord’s warranty of habitability in New York City?

Some of the common warranty of habitability conditions that New York City tenants may experience include but are not limited to; no heat or inadequate heat, no hot water, plumbing issues, mold, pest infestations, bedbugs, broken appliances, missing or broken smoke/carbon monoxide detectors, lead paint violations, and missing window guard (for tenants with children under 10 years of age).

If your apartment becomes damaged and uninhabitable due to fire, water damage, hurricane, or another natural disaster, etc., then you have the right to cancel your lease upon three days written notice. In that event, you have no further obligation to pay rent or finish your lease, provided that you vacate and surrender the premises. 

In any event, if the tenant is the one responsible for the unsafe or unclean condition, then technically, it’s not the landlord’s responsibility to cure the condition.

Landlords also have a duty to protect you from reasonably foreseeable criminal harm. For example, if you are unfortunately the victim of a crime in your apartment such as burglary and you can show that the landlord had notice regarding the repair and was negligent in fixing your apartment locks or the locks to the building entrance, you may be able to recover damages from your landlord.

NYC Heat Laws; Tenants Right to Heat and Hot Water

NYC Heating season runs from October 1 through May 31 and landlords are required to keep indoor temperatures above 62 degrees at all times (regardless the outside temperature). From 6 AM to 10 PM they are also required to keep indoor temperatures at a minimum of 68 degrees when outside temperatures fall below 55 degrees. Your landlord is also required to provide you with hot water year-round.  

It's quite common for buildings and landlords to provide inadequate heat, especially during cold fronts in late April or May and it's important to know your rights. The first thing you should do if you don't have enough heat is to call 311 and file a complaint with the Department of Housing Preservation and Development (HPD for short). If your building is without heat you should also get your neighbors to file complaints- strength in numbers! If heat isn't restored the HPD will send an inspector down to the building to verify the complaint and issue violations and fines which can range from $250-1000. Tenants who live in rent-regulated apartments may also file complains with the New York State Division of Housing and Community Renewal (the DHCR) which may impose its own penalties on the landlord. 

If heat is not restored quickly or if your landlord maliciously cut the heat (meaning the lack of heat wasn't due to issues regarding boiler maintenance/performance) it is advisable that you contact a landlord-tenant attorney to discuss your legal rights which include a rent abatement for days in which heat was not provided. 

What remedies do tenants have if the landlord breaches the warranty of habitability in New York City?

You have several options if your landlord breaches the warranty of habitability.However, no matter which way you decide to address the issue, you need to ensure that you give the landlord written notice of any repair request or unsafe condition. You must keep proof of the notice.

If you have repairs, lack of services, or emergency conditions, that your landlord hasn’t fixed, you should first start by calling 311 to report the conditions to the HPD.

Next, you can commence a court proceeding against the landlord, called an “HP proceeding”. Essentially, this proceeding forces the landlord to make repairs and correct any outstanding building violations.

When you go to court in your county, you will fill out what’s called an “Order to Show Cause Directing the Correction of Violations.” In the Petition, you must list all the conditions in need of repair in each room of the apartment and public areas. At the time of starting your proceeding, you can also request an inspection of your apartment from the Department of Housing Preservation and Development (HPD).

If you cannot afford to pay the court fee to commence this type of case, you can apply to proceed as someone in need of financial assistance. If approved by the court, you will be given an index number for free.

If you don’t want to sue for just repairs, you can also sue your landlord for a rent reduction. The court will then decide how much your rent will be reduced based upon the alleged repairs.

Another popular, yet risky tactic is to withhold the rent, and not pay the rent until the landlord makes the requested repairs. This is a bit risky because more than likely, your landlord will turn around and sue you for non-payment of rent. However, when this happens, you can counterclaim based upon breach of warranty of habitability. The court will then decide what amount of any rent abatement that you are entitled to. This becomes risky because some people end up not putting aside their rent money and spending it. In that event, if you can’t pay the rent (minus any rent abatement that the court awards) you run the risk of being evicted. 

Lastly, you could make the necessary repairs yourself, and then subtract the reasonable repair costs from your rent payment. You should only consider this option if you deem the repair an emergency, and you have given your landlord written notice and the landlord still hasn’t corrected the repairs. If you chose this route, you should be sure to keep all notices for repairs, any photographs, and all receipts for the repairs. 

As you can see the NYC Warranty of Habitability is designed to protect tenants and give them the right to a liveable home. If you think your rights are being violated make sure you document everything and take the necessary steps to remedy it by contacting the appropriate city agency or hiring an attorney.