Many New York tenants returned home after Hurricane Sandy to find catastrophic damage and loss of power, heat, hot water and elevator service. New York residential (including cooperative) tenants are protected by the warranty of habitability under New York Real Property Law §235-b.

It is implied in every New York residential lease that the premises are habitable and fit for the uses reasonably intended by the parties and that there are no conditions that are detrimental to the tenants’ life, health or safety.

The New York warranty of habitability creates an unqualified obligation which is not excused by the acts of third parties or natural disaster. The landlord’s good faith may be raised as a defense only if the landlord is prevented from making repairs due to strike or labor dispute.

Many of the conditions that usually result from a severe storm, including the loss of electricity, heat and hot water; the reduction of elevator service and other essential services; non-functioning appliances; leaks and flooding; and odors, mildew and mold, have been held to constitute a breach of the warranty of habitability . New York courts have placed the burden of repairs on landlords even when they are required by events that are wholly out of their control.

The expansive view of the warranty of habitability taken by the New York courts would include even the extraordinary damages caused by Hurricane Sandy. New York landlords have been held responsible for air pollution and other conditions resulting from clean- up of the destruction of the World Trade Center after 9/11/01; a New York apartment flooded due to a defective roof during a large rainstorm; and a below grade apartment flooded after the New York City storm sewers were overwhelmed by extremely heavy rainfall.

These are the limitations on the enforcement of the warranty of habitability that protect New York landlords:

(a) the landlord must have had either actual or constructive notice of any conditions requiring repair;
(b) the tenant must provide the landlord with reasonable access to make repairs ;
(c) the tenant may undertake any necessary repairs and set- off their cost against the rent only if the landlord has first been notified of the conditions in need of repair and fails to take action in due course to provide a remedy; and
(d) breach of the warranty of habitability does not give tenants the right to unilaterally cancel the lease.

The warranty of habitability permits tenants to withhold rent and use the breach as a defense in a nonpayment eviction proceeding or to raise the breach as a counterclaim or in lawsuit against the landlord.

In determining the appropriate abatement or rent reduction to which a tenant is entitled, New York courts balance the nature, severity and duration of the breach against the landlord’s diligence in making repairs. The abatement can range from a rent reduction of a few percent to the full amount of the rent. Where habitability issues affect an entire building, such as in a storm, a group of tenants can organize a rent strike to collectively withhold rent until necessary repairs are made by the landlord.

For further information, read the “How To Survive Legally as a Landlord” book available at https://www.legalsurvival.com/law_books/landlord_tenant_law/landlord_tenant.html