Warranty of habitability in New York

Every residential lease in New York, written or oral, includes a promise by the landlord that the apartment and the building's shared areas are fit to live in and free of conditions dangerous to your life, health or safety. That promise is the warranty of habitability in Real Property Law § 235-b; you can't sign it away, and if the landlord breaks it, a court can lower your rent for the time conditions were bad.

Here is what the law actually says, how tenants use it, and how to build a claim that holds up.

What the law says

RPL § 235-b has three parts:

1. The promise. The landlord is deemed to covenant that the premises and all areas used in common with other tenants are "fit for human habitation and for the uses reasonably intended by the parties," and that occupants won't face conditions "dangerous, hazardous or detrimental to their life, health or safety." A condition caused by the misconduct of the tenant, or people under the tenant's direction or control, is not a breach.
2. No waiver. Any lease or agreement that waives or modifies these rights "shall be void as contrary to public policy." A clause saying you accept the apartment "as is" doesn't remove the warranty.
3. Damages. A court figuring out damages "need not require any expert testimony." If a strike or labor dispute not primarily caused by the landlord led to the problem, the tenant can't recover for that part, except a share of the landlord's net savings from the strike, provided the landlord made a good-faith effort to cure where practicable. For rent-regulated tenants, any award is reduced by a rent reduction HCR already ordered for the same conditions.

What kinds of conditions can breach the warranty

The law sets a standard, not a list. The Attorney General gives two examples: failing to provide heat or hot water on a regular basis, and failing to rid an apartment of an insect infestation. In NYC, conditions that the Housing Maintenance Code treats as violations are often the evidence. Whether a specific condition breaches the warranty depends on how serious it is, how long it lasted, and whether the landlord knew.

For specific problems, see our guides to heat and hot water, mold, pests, leaks and cooking gas outages.

How rent abatements are figured

A rent abatement is a refund or credit for the period you lived with the problem. The Attorney General describes the measure this way: the reduction is the actual rent minus the estimated value of the apartment without the essential services. The landlord must have had actual or constructive notice of the condition. In practice, a judge looks at:

• Severity: how much of the apartment was affected, and whether it threatened health or safety.
• Duration: how long the condition lasted, from when the landlord knew to when it was fixed.
• Notice and response: when the landlord was told and what they did about it.
• Your evidence: photos, logs, HPD violations, texts and witness accounts.

There is no fixed percentage in the statute. Awards depend on the facts, which is why records matter so much. Since no expert is required, your own testimony and documents can be enough.

How tenants use the warranty

1. 1

   Give written notice

   Tell the landlord or super in writing, with dates and photos. Notice is part of the standard, and the written record proves it.
2. 2

   Get the condition on the public record

   File with 311 so HPD can inspect and issue violations. See how to file an HPD complaint.
3. 3

   Document as you go

   Keep a log with dates, photos and video, 311 Service Request numbers, receipts for anything you had to replace, and the names of neighbors with the same problem.
4. 4

   Ask for repairs through Housing Court if needed

   An HP action asks the court to order repairs. HPD notes you don't need a lawyer to start one.
5. 5

   Claim an abatement

   You can raise breach of the warranty as a defense and counterclaim if the landlord sues for rent, or bring your own claim for a rent reduction.

Withholding rent and repair-and-deduct

The Attorney General's guide says a tenant may withhold rent, but the landlord can then sue for nonpayment, and the tenant can countersue for breach of the warranty. That means withholding puts you in Housing Court, and if the judge finds the conditions don't justify the amount held back, you can owe the rent. If you withhold, set the money aside so you can pay whatever the court decides. In extenuating circumstances, the guide also says tenants may make necessary repairs and deduct reasonable costs from the rent; keep every receipt and talk to a lawyer first. Read can I withhold rent for repairs?

Check the building before you sign

The best habitability claim is the one you never need. Before renting, look up the address on Roofy for open HPD violations and complaint history, and use our guide to checking a building before you rent.