CTRC Fact Sheet Index

TenantNet note: These Fact Sheets were published by CTRC in the mid-1990's. Some information will be out-of-date. As far as we know, there have been no updates to these fact sheets. While much of the information may still be valid, the reader should exercise caution.

CTRC Fact Sheets -- reproduced with permission.
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The Community Training Resource Center (CTRC) is a city-wide not-
for-profit organization that champions the rights of modest and
low-income tenants and promotes the preservation, improvement,
and expansion of affordable housing. CTRC provides training and
technical assistance for neighborhood housing groups, community
based organizations, legislative staffs and social service
providers.

CTRC produces fact sheets on tenants' rights, develops and
publishes research reports, and provides a written guide to New
York City government processes. CTRC advocates on budget policies
that affect housing and related services in low-income
neighborhoods. CTRC has led the campaign for the improvement and
expansion of the city's Housing Maintenance Code inspection and
enforcement services.
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CTRC Fact Sheet #002

WARRANTY OF HABITABILITY

History

Before 1971, residential tenants would sign leases which
relegated most of the responsibility for repairs and maintenance
to the tenants themselves. In leasing, landlords would deliver
only the physical the space of the apartment, avoiding
obligations relating to the apartment's condition. A tenant might
be required to accept an apartment "as is" and no relief was
extended unless the tenant could prove fraud or
misrepresentation. Whether the tenant had a written lease or oral
agreement, the landlord's failure to maintain the apartment or
building in a habitable state (or to furnish services specified
in a lease) in no way diminished the landlord's right to collect
the rent, even if the landlord was in violation of local and
state laws or housing codes. A 1971 court decision in Manhattan,
noting the inequity of the landlord/tenant contract, read housing
code requirements into residential leases as the minimum standard
of habitability and awarded damages to the tenant for the
landlord's lack of a good faith effort to make necessary repairs.
Other court decisions followed suit.

In 1975, the New York State Legislature enacted Section 235-b of
the Real Property Law (RPL), known as the "Warranty of
Habitability" for the protection of residential tenants.

When he signed the bill, Governor Hugh Carey remarked, "By one
large step this bill moves the law of landlord and tenant into
the twentieth century." The Warranty is now part of every
residential lease in the state, written or oral.

The Statute

The Warranty of Habitability makes the landlord responsible for
keeping habitable the public areas of residential buildings
(entrance-ways, lobbies, hallways, etc.) as well as the private
areas (individual apartments). The landlord is also responsible
for maintaining required or agreed-upon services:

1.   Every rental agreement between a landlord and a tenant,
     written or oral, is a contract, under which the landlord
     warrants (guarantees) that the premises are and will be
     maintained in a habitable state. Under the Warranty, there
     is an implied responsibility for the landlord to maintain
     the tenant's apartment in safe, habitable condition, with
     accompanying services.

2.   Neither the landlord nor the tenant can agree to waive or
     modify the Warranty.

3.   Expert testimony is not required (as it is in other kinds of
     damage claims) to determine the amount of rent abatement
     when there is a breach (violation) of the Warranty.

4.   The protections of the law do not apply where violations are
     caused by the tenant or someone under the tenant's control,
     even though the landlord may still be legally required to
     repair these conditions. In addition there are limitations
     on the amount of abatement a tenant can collect when a
     breach of the Warranty is the result of a labor dispute.

The concept of the tenant as a "contractor" of services as well
as space, evolved from RPL Section 235-b. The law entitles the
tenant to those services, whether required by law, or the lease
(or oral rental agreement), or reasonably intended by the parties
to the lease to be supplied by the landlord. In return, the
landlord is entitled to the rent.

When services are not provided, the tenant has the implied right
to withhold all or a portion of the rent. The landlord may then
sue the tenant in Housing Court for non-payment of rent, but a
breach of the Warranty may be used by the tenant as a defense and
a counterclaim. Alternatively, the tenant may sue the landlord to
enforce the Warranty and for damages.

While the law does not define specific standards of habitability,
the courts have applied broad interpretations.

Tenants have a right to expect not only shelter but a package of
goods and services including adequate heat (or a heating system
if the tenant is responsible for paying for heating fuel or
utilities), hot water, light and ventilation, plumbing, secure
windows, doors, ceilings and walls, proper sanitation and
maintenance. The tenant can legally expect the leased premises
and the areas within the landlord's control to be habitable at
all times during the term of the tenancy.

Application

The following are some examples of a breach of the Warranty of
Habitability. (Note that in most cases more than one problem is
cited in a complaint.):

o    vermin and/or rodent infestation

o    failure to provide heat and hot water as required by law

o    hazardous conditions caused by construction or renovation

o    noise from construction or renovation, or from unreasonable
     neighbors

o    failure to secure a premises from theft and burglary
     (generally, a secure front door and working intercom)

o    water leaks in ceilings, defective ceilings, leaks around
     windows deprivation of janitorial services defective
     appliances, such as stoves and refrigerators

Measure Of Damage

Damages, as measured by the courts, vary from case to case. The
general test is the value of the apartment with and without the
services in question. Even though non-expert testimony is
permitted to establish the reduced value, courts have not set
specific amounts for particular breaches of the Warranty. Aside
from the condition itself, judges assess the length and severity
of the breach, as well as the steps taken by the landlord (if
any) to correct.

However there is no guarantee that tenants will succeed in
getting repairs or rent abatements, because some judges may
refuse to enforce the Warranty of Habitability.

The following are parts of court decisions which reflect the
variety of approaches taken by different judges:

o    lack of janitorial services for 17 days entitled the tenant
     to a rent abatement of 10 percent for that same period.

o    failure to provide hot water necessary for the health of the
     tenant brought a $50 award for each time there was no hot
     water.

o    a defective and unsafe stove for five and a half months
     entitled the tenant to a $10 abatement, but in the same
     apartment where the air conditioner was not working there
     was a $100 abatement of rent.

o    for no heat for an accumulated total of 43 days, no hot
     water for 53 days, no elevator for 38 days and other
     conditions, the abatement equaled 50 percent of the rent for
     three months and 25 percent for the remainder of the time
     the breach continued. There was also a punitive assessment
     of $25,000.

o    a non-working elevator, a poorly maintained intercom, and
     unreliable hot water was considered a minor breach of the
     Warranty and the tenant was awarded a 10 percent abatement.
     (The judge noted that this award might have been more, but
     for the tenant's failure to document the violations.)

o    broken window glass, leaky faucets, broken floors,
     inoperable vents, water leaks in the closets, living room,
     and kitchen, leaking radiator and rodent and roach
     infestation resulted in an abatement of 35 percent.

Many awards are nominal. However, when a court finds that a
landlord's breach was malicious, punitive damages may also be
awarded. Not all cases claiming a breach of Warranty have been
successful:

o    where a tenant claimed a breach of Warranty due to the
     construction of a adjacent building which cut out light and
     air from a second bedroom window, the lower court awarded a
     28 percent reduction in rent, but on appeal the abatement
     was lowered to 7 percent.

o    when a kitchen ceiling collapsed the tenant sued the
     landlord under the Warranty of Habitability, claiming that
     due to the landlord's negligence her daughter was injured.
     The court ruled that the Warranty doesn't apply to actions
     against a landlord for negligence.

Self Help

On a practical level, when tenants decide to take individual or
collective action, landlords will often attempt to negotiate a
settlement to avoid a court trial on the issues. (See our fact
sheet, Negotiating.) However, it is important that these
negotiations occur in the "shadow of the law", as if the case
were ready to be tried in court.

Since courts usually feel that landlords should have the
opportunity to make repairs, it is important to give the landlord
notice.

Negotiations or court appearances involving building conditions
that violate the Warranty should be preceded by the following
preparations:

1.   Report in writing all conditions to the landlord and
     management. Keep a log of any verbal communications, but
     generally it is better to document all complaints in
     writing.

2.   Take photos of the violations. A way to prove in court when
     the violation existed is to include in the picture a banner
     headline from a tabloid newspaper alongside the violation.
     Then bring the picture and newspaper to court. This prevents
     the landlord from claiming that the photo is old and that
     the condition has been corrected.

3.   Report all violations to the appropriate municipal, county,
     or state agency, asking for whatever relief is available.
     Get certified (official) copies of code violation reports.
     In New York City, the Housing Court has computer terminals
     in many courtrooms, so judges have instant access to city
     data on code violations. The law allows such data as
     evidence during trial.

4.   Document all correspondence by sending it certified mail,
     return receipt requested, and keep photocopies.

5.   Document heat complaints with temperature readings taken
     throughout the day, both inside and outside. Use a
     "heatsheet" chart.

Withholding rent

If there is a failure to get violations corrected through
negotiations with the landlord, one or more affected tenants may
decide to withhold rent. Rent withholding is not mentioned in the
Warranty Law, but the courts have recognized the Warranty as a
defense to a landlord's claim of a tenant's non-payment of rent.
Prior to any court action initiated by the landlord or tenant,
tenants should take steps that will support a Warranty defense:

o    If violations are building-wide, document the conditions,
     organize affected tenants to withhold rent collectively and
     appear in court to support each other. There is no minimum
     number of tenants needed to take collective action but the
     more the better. Unfortunately, there is no guarantee that
     all cases will be heard at the same time or by the same
     judge. (See our fact sheet, A Housing Court Overview, about
     the NYC Housing Court.)

o    Give written notice to the landlord or management company as
     described in the section above, relating the conditions the
     tenants are experiencing. Also give notice of the tenants'
     intention to withhold the rent if corrective actions are not
     taken within a specified time.

o    If no corrective actions are taken, rents may be withheld
     collectively or individually. It is very important, however,
     to get expert advice on rent withholding procedures from a
     community organization, legal services or legal aid
     provider, or a tenant attorney.

Sue the Landlord

Tenants can, instead of or in addition to withholding rent, bring
a lawsuit against the landlord for damages, and/or get an order
to make repairs. This can be a costly and lengthy process.
However, there is a special procedure in New York City Housing
Court known as a "Housing Part" action (HP action). This a tenant-
initiated lawsuit which does not require legal representation.

The tenant or tenants, as petitioners, may take a landlord to
court for failure to make repairs. The Court may send a housing
inspector to confirm the tenant's complaint, and if confirmed,
will order repairs and sometimes civil penalties if the landlord
fails to comply. (See our fact sheet, NYC HP Actions.) While
there is no mechanism for this type of affirmative action by
tenants in upstate localities, the Warranty of Habitability can
still be used as a defense for withholding rent.

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These article are Copyright 1995 and 1996 by Community Training Resource
Center (CTRC) and reproduced by TenantNet. They may be freely
redistributed in their entirety provided they are reproduced exactly
as in the originals, including this copyright notice, the opening and
closing informational banners and any references to either CTRC
or TenantNet must be included.

These article are provided as is without any express or implied
warranty. While any information in these article is believed to be
correct at the time of writing, these articles are for educational
purposes only and do not purport to provide legal advice. If
you require legal advice, you should consult with a legal
practitioner licensed to practice in your jurisdiction.

Community Training Resource Center                (212)964-7200
47 Ann Street
New York, NY 10038

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