5 Questions Most Landlords Forget to Ask

If you are a seasoned and veteran landlord, you are aware of the stress you have to handle on a daily basis as you try to conduct your business with a variety of tenants. This is true even if you are planning on entering this risky business by becoming a landlord and renting out your property. While it is an exciting and highly rewarding opportunity, there are certain things you should be aware of and therefore prepare for. The following are 5 questions that most landlords forget to ask, but really should have the answers to.

1. Why Should I Care About the Warrant of Habitability?

Why Should I Care About the Warrant of Habitability?The Warranty of Habitability applies to all residential properties in the United States and says that, in addition to providing the tenant with a place to live, the landlord is charged with ensuring that residence’s habitability. This means that it is your job as the landlord to ensure that there are no existing conditions on your property that might pose danger to life, health or safety.

Among the many legal grounds tenants use to sue their landlords, the Warranty of Habitability is the most common. A tenant may sue a landlord if danger exists, if the property is not habitable, if the tenant becomes ill, or if an unsafe condition causes a fall. Because the tenant is permitted to withhold rent in the event of a breach in this warranty, the Warranty of Habitability defense is often raised in non-payment proceedings.

However, there are ways for a landlord to defend it. Because there is only one defense to a holdover proceeding, a landlord who needs to evict a tenant should posit holdover or other grounds. If a tenant is being evicted, the only viable defense to a holdover proceeding – other than procedural grounds – is retaliation, which can be claimed if a tenant has complained to the building inspector or health department within six months prior to an attempted eviction or 30-day notice.

Tenants involved in non-payment proceedings may allege that they simply withheld rent because the property was unsafe, in violation of building or fire codes, or infested with rodents.

An injury-based lawsuit may allege ongoing building code violations such as improper rails or other unsafe conditions. Further, under Joint and Several Liability, even if a landlord is responsible for only 1% of a person’s injury – and the tenant is 99% responsible – a plaintiff can recover the entire judgment against the landlord. This is where renter’s insurance can add an additional layer of liability protection.

New York State also recognizes Comparative Negligence which means a jury may decide that someone was partially responsible for their own injuries and reduce their award.


  • The Warrant of Habitability makes it your job as the landlord to ensure that there are no dangerous and/or hazardous conditions on your property, and that your property is habitable.
  • While tenants often use this to sue their landlords, there are defenses in place to help protect the landlord from unscrupulous tenants.

2. Why Should I Care About Backflow Preventers?

Why Should I Care About Backflow PreventersA backflow prevention device is used to protect potable water from contamination or pollution due to backflow. In water supply systems, water is normally maintained at a significant pressure to enable water to flow from the tap, shower or other fixture. Water pressure may fail or be reduced when a water main bursts, pipes freeze or there is unexpectedly high demand on the water system. Reduced pressure in the pipe may allow contaminated water from the soil, from storage, or from other sources to be drawn up into the system.

According to New York State’s health code, back flow preventers are required in most commercial properties and larger residential properties to protect municipal water systems. Although not all towns enforce this New York State Health law, contractors should be alert. Landlords are usually informed that they will have to install back flow preventers which, in a medium-sized apartment complex, can cost from $20,000 to $80,000.

Pushback from sellers who don’t want to provide or guarantee back flow prevention makes it important for those considering the purchase of a specific property to check with local zoning and building authorities regarding the requirement for a backflow certificate. If certification is required, buyers should elicit a written guarantee from sellers stating that they will install a backflow preventer.


  • Backflow preventers help to ensure there is no contamination of potable water supplies.
  • The New York State health code requires backflow preventers in most commercial and residential properties.

3. What Documents Should I Use?

What Documents Should I UseThree at the very least. A rental application, a lease and a move-in/move-out checklist.

I strongly recommend rental applications for a number of reasons. Firstly, it is a great way to screen your tenants. After all, you do not want to be conducting business with an irresponsible tenant who is late with payments, a nuisance to neighbors and who damages your property. With rental applications, you can review their credit history and ask for references from previous landlords.

Secondly, rental applications are essential in collecting a judgment against a tenant in the event you have to sue one. It is also a bonafide defense against a discrimination lawsuit in case you are the one being sued by your tenant for discrimination. In such a case, you can defend your choice of turning down a tenant based on an item that you found unsatisfactory in the rental application like bad credit or bad tenancy history.

Another document that every landlord must use is a lease. A lease will provide for attorney’s fees and late fees and provide grounds for evicting the tenant if they do not comply with the clauses mentioned in the lease. This protects the landlord by clearly stipulating the rules the tenant is expected to follow.

Finally, move-in/move-out checklists are important in the event that the tenant damages or appropriates something during their tenancy. A move-in/move-out checklist is a list in which you note the condition of the apartment before and after they move in. Additionally, you may also take accompanying pictures of your property before renting it out to add to your records. This list and these records are helpful if the tenant has caused damage to the property and is refusing to acknowledge it.


  • You should be using a rental application, a lease and a move-in/move-out checklist.
  • These documents are for your protection for dishonest and irresponsible tenants.

4. Can I Refuse to rent to a Tenant Who Has an Emotional Assistance Pet?

Can I Refuse to rent to a Tenant Who Has an Emotional Assistance Pet?You might have a strict no-pets clause in your lease. However, whether or not this clause includes emotional assistance pets also is a separate issue. As a landlord-tenant attorney, my opinion is that tenants with emotional assistance pets be exempt from a no-pets clause. Refusal to rent to a tenant with an emotional assistance pet can result in discrimination charges. This is especially so if the tenant has a note from a doctor or a therapist saying that they need an animal companion for their emotional assistance. Do note, however, that this is different from a specially trained service dog.


  • It is unwise to refuse to rent to a tenant who has an emotional assistance pet.
  • If the tenant has a note from a doctor or therapist, your refusal could result in discrimination charges.

5. What Happens if My Tenant Dies?

What Happens if My Tenant Dies?Landlords rarely anticipate such an unfortunate and tragic event. However, it happens more often than you would like to believe and it is essential to prepare for such an eventuality. In the event that a tenant dies, you should first restrict grant access to the apartment to anyone unless they provide a certificate from the court that they are an administrator of the estate, executor of the estate, or the county public administrator. Secondly, you should file a claim against the estate if an executor or an administrator is appointed to recover your lost rent and damages to the apartment.


  • Restrict apartment access to only authorized person.
  • File a claim against the estate to recover lost rent and damages.

If you are landlord dealing with tenant issues, contact Robert Friedman, an experienced Landlord Tenant Attorney in Rochester NY.

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