Understanding Your Residential Lease Agreement: What is the Implied Warranty of Habitability?

Regardless of whether your lease actually mentions the Implied Warranty of Habitability, this right is automatically built into every single lease in New York City. All landlords are required by law to provide tenants with a safe, clean and livable apartment that does not have any conditions that would be dangerous, hazardous or detrimental to your life, health or safety. Furthermore, if you live in an apartment building, this right extends to the common areas as well. Most importantly, this right can never be waived, so if there is a clause in your lease stating such, it is considered null and void.

What Are the Most Common Situations that Trigger the Implied Warranty of Habitability?

If your apartment looks anything like the picture above, you have a perfect case for a breach of the Implied Warranty of Habitability. Think of conditions or issues in your apartment that would make it completely unlivable or unreasonable to continue living under. The most common conditions that would invoke this right include:

No water
No heat
No electricity
No gas
Burst pipes, leaks, flooding
Mice/rats/vermin
Roaches/Insects/Bugs
Mold
Lead paint (In most buildings, it will be assumed that the paint is lead if there is a child under the age of seven living in the apartment)
No window guards
Broken or missing smoke/carbon monoxide detectors
Poor ventilation
Broken door locks, etc.

For those living in apartment buildings with common areas, any of the following would qualify as a breach of the Implied Warranty of Habitability:

Crime or illegal activity
Sewage or garbage in the hallways
Dangerous stairs or railings
Broken fire escapes
Boiler in disrepair
Roof in disrepair

What Should I Do If I'm Experiencing One or More of These Issues?

If you're ever experiencing any of the above conditions, your first step should be to immediately notify your landlord in writing, as this will provide sufficient evidence that you've put the landlord on notice of these conditions. Be sure to take photographs and videos of the conditions (if possible), so that you can properly document these issues.

In order to prove a breach of the Implied Warranty of Habitability, the landlord must have "actual" or "constructive" notice of the conditions that need to be repaired/rectified. If you've sent your landlord a letter or they've received notices of violations from the City, then this places them on actual notice. Whereas, if the landlord or one of their employees should or could have known about the condition, this would place them on constructive notice. For example, if the Landlord was conducting regular routine maintenance of the apartment, there is a good chance that they would have uncovered the condition.

What Are My Options if My Landlord Doesn't Fix the Conditions?

If you're fortunate to have an attentive landlord, your letter should prompt them to immediately fix the conditions. However, if you've sent a letter and documented the issues and your landlord doesn't respond or remediate within a reasonable time (based on the circumstances of the issue), you have a few options.

First, you should call 311 and report the conditions your facing to the NYC Department of Housing Preservation & Development
Second, you can commence a court proceeding against your landlord called an "HP proceeding," which essentially forces the landlord to make repairs and fix the issues you're experiencing.
Third, you can withhold rent until the repairs are made; however, this does come with the risk that your landlord will file to evict you for non-payment of rent. In that circumstance, you would be able to raise the Implied Warranty of Habitability as a defense. If you successfully prove your defense, you may be entitled to an "abatement" (i.e., a period of time when you do not have to pay rent) or a reduction of the rent. Based upon the judges' findings, you could receive an abatement for the entire time the condition existed, up to six years. This option is typically reserved for emergency situations, where you've given the landlord notice and they haven't made the necessary repairs/remediations.

The Implied Warranty of Habitability is meant to protect tenants and afford them the comfort of a livable home environment. If you think that your experiencing a breach of this right, you should immediately notify your landlord in writing and take the appropriate steps to document the conditions. If your landlord is unresponsive you may want to take your concerns to court or consider hiring an attorney to assist you.

Disclaimer: This blog post and similar posts are not to be considered as providing legal advice. The discussion here is meant for educational and informational purposes only and shall not create an attorney-client relationship with the readers of this content.