As a dedicated Rochester Landlord Tenant Lawyer, I often advise landlords on the basis of liability. Tenants sue landlords on a number of legal grounds, one of which is called the Warranty of Habitability. It’s based on contract theory, so the Warranty of Habitability applies to all residential properties anywhere in the United States. The landlord is charged with not only providing the tenant with a place to live, but ensuring that it is habitable, meaning that there is no danger to life, health, or safety. If such danger exists, the tenant will have grounds to sue the landlord if the property is not habitable, or the tenant becomes ill, or if they fall because of unsafe conditions. The tenant also has the right to withhold rent if there’s a breach in the Warranty of Habitability. Because this habitability defense is often raised in non-payment proceedings, I recommend that landlords use other grounds – such as holdover – when it becomes necessary to evict a tenant because there’s only really one defense to a holdover proceeding. If you’re evicting someone, the only viable defense to a holdover proceeding – other than procedural grounds – is retaliation. That means, if a tenant has complained to the building inspector or the health department within the past six months and you try to evict them or give them a 30-day notice, they can claim retaliation.

This is getting off the subject of liability but, unlike non-payment proceedings, tenants involved in non-payment proceedings can allege that they didn’t pay their rent – they’re not holding it in escrow, but simply didn’t pay it – because the property was unsafe, in violation of building codes or fire codes, or was infested with rodents. For instance, I once represented mobile home tenants in a mobile home park where the septic was out of compliance. We instituted a year-long rent strike and, lawfully withheld a quarter of a million dollars. That got the landlord’s attention, and he fixed the septic problems.

Building code violations can be the basis of someone’s injury-based lawsuit because of such things as improper rails or other unsafe conditions. Under Joint and Several Liability, even though you may be only 1% responsible for a person’s injury and your tenant is 99% responsible – for instance, they have a dangerous dog – the plaintiff can recover the entire judgment against you. This is where renter’s insurance can help because it will include an additional layer of liability protection.

New York also has Comparative Negligence. That means, even if someone was partially responsible for their own injury – maybe they were torturing the dog and that’s why the dog attacked them – they may still receive a recovery, but the amount may be diminished by the percentage of their contribution to their own injuries. In other words, a jury could decide someone was partially responsible for their injuries, so their award would be less.

Is a tenant suing you? Contact experienced Rochester Landlord Tenant Lawyer Robert Friedman for guidance on the matter.

This educational legal blog was brought to you by Robert Friedman, an experienced Rochester Landlord Tenant Lawyer.