Warranty of Habitability

January 11, 2018 | By Charles Botensten

Q: What is New York’s warranty of habitability, and who does it apply to?

A: Under New York state law, every residential lease, whether oral or written, includes an implied warranty (a promise) that the unit and all connected public areas are fit for human habitation and that the residents will not be subject to any dangerous or detrimental conditions. This implied warranty is known as the Warranty of Habitability (the “Warranty”) and it applies to all residential landlord-tenant relationship (including co-op units). The Warranty does not apply to commercial tenants.

Depending on the circumstances, certain conditions may be found to violate the Warranty.  These conditions may include lack of heat, lack of water, excessive noise, mold, secondhand smoke, bedbugs and lead-based paint. In order to determine whether a violation of the Warranty has occurred, each situation’s specific facts must be evaluated including its duration, extent, cause, and other factors. If a court finds that there has been a violation of the Warranty, the remedy is generally rent abatement (a reduction of rent for a period of time or in a certain amount) and not a monetary award for personal injury or property damage.

The Warranty cannot be waived or modified.  However, if a tenant creates a condition that violates the Warranty, then the Warranty is not breached, and it is the tenant who must correct such a condition.

Important Tip:  If a tenant is faced with a possible breach of the Warranty, the tenant should immediately notify the landlord or property manager, in writing, of the suspected condition.  If there is no response or no action is taken to remediate the condition, the tenant should contact the appropriate city agency responsible for housing and building safety or an attorney that handles landlord-tenant matters.

The Legal Line Question by:
Neil B. Garfinkel
REBNY Broker Counsel

Partner-in-charge of real estate and banking practices at Abrams Garfinkel Margolis Bergson, LLP