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Posted by DK on January 19, 1999 at 18:54:30:

In Reply to: Burnt-out and move in? posted by Bob C. on January 19, 1999 at 09:32:38:

The lease will have a provision in fine print which deals with the situation where the apartment becomes unlivable because of a fire or other calamity. Read that provision carefully. If the landlord has not followed the procedure in the lease, then you have many more options.

Assuming that the landlord has followed the lease procedure and the lease says that you are now responsible for the rent. Then the common law governing constructive eviction and warranty of habitability applies. The bottom line is that if a "reasonable person" would find the apartment habitable, then you are responsible for the rent. What is a "reasonable person?" That's a weasel word that lawyers use to describe a judge using discretion. What's reasonable changes from person to person, so it's hard to predict exactly what a judge would determine.

Even if it may be reasonable for you to move back into the apartment, the warranty of habitability may still entitle you to a rent reduction for the continuing inconveniences which you may suffer.

My advice, without really knowing the specifics (take it for what it's worth-not a whole lot) is not to move back if there are any violation conditions or repairs still required in the apartment or in the common areas of the building.

By the way, the tenants in the lower floors can compel the landlord to speed up the repairs. They should commence a proceeding in the Housing Court to get an order to get the repairs done quickly. Many tenant attorneys will do this for a small fee, or for even court-awarded fees which the landlord must pay!

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Comments:
: The lease will have a provision in fine print which deals with the situation where the apartment becomes unlivable because of a fire or other calamity. Read that provision carefully. If the landlord has not followed the procedure in the lease, then you have many more options.

: Assuming that the landlord has followed the lease procedure and the lease says that you are now responsible for the rent. Then the common law governing constructive eviction and warranty of habitability applies. The bottom line is that if a "reasonable person" would find the apartment habitable, then you are responsible for the rent. What is a "reasonable person?" That's a weasel word that lawyers use to describe a judge using discretion. What's reasonable changes from person to person, so it's hard to predict exactly what a judge would determine.

: Even if it may be reasonable for you to move back into the apartment, the warranty of habitability may still entitle you to a rent reduction for the continuing inconveniences which you may suffer.

: My advice, without really knowing the specifics (take it for what it's worth-not a whole lot) is not to move back if there are any violation conditions or repairs still required in the apartment or in the common areas of the building.

: By the way, the tenants in the lower floors can compel the landlord to speed up the repairs. They should commence a proceeding in the Housing Court to get an order to get the repairs done quickly. Many tenant attorneys will do this for a small fee, or for even court-awarded fees which the landlord must pay!


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