The Warranty of Habitability: Right to Live in Good Conditions

Under the warranty of habitability, tenants have the right to a livable, safe and sanitary apartment. Any lease provision that waives this right is contrary to public policy and is therefore void. Examples of a breach of this warranty include the failure to provide heat or hot water on a regular basis, or the failure to rid an apartment of an insect infestation. (NYS Real Property Law §235-b).

Landlords Have a Duty to Repair

Landlords of multiple dwellings (3 or more units) must keep the apartments and the building’s public areas in “good repair” and clean and free of vermin, garbage or other offensive material. Landlords are required to maintain electrical, plumbing, sanitary, heating and ventilating systems and appliances landlords install, (such as refrigerators and stoves), in good and safe working order. All repairs must be made within a reasonable time period. (NYS Multiple Residence Law §174)

Landlords Must Abide by the

Property Maintenance Code of NY which means tenants living
- free of infestation of rodents or insects, free of plumbing leaks or roof leaks, free of electrical hazards, with proper ventilation. with hot and cold running water, and all appliances provided shall be kept in safe working condition
- For more info see the City’s Maintenance Inspection Check List
Rochester’s Lead-Based Paint Prevention Ordinance (See also City Code § 90-50 to § 90-65)

Restoring the Warranty of Habitability

If the landlord breaks the warranty of habitability and fails to fulfill their duty to repair there are various ways to make a landlord do their repairs and bring them back into compliance with habitable housing.

Collective Action with other tenants with the same landlord can be one of the most effective ways to restore the warranty of habitability (e.g. public letters, public protests, Collective Code Enforcement, Collective Rent Withholding)
Code Enforcement: Have a public authority (e.g. City of Rochester’s Code Enforcement) cite all code violations and enforce the code if they don’t repair. Penalties for landlord noncompliance are can be fines, court-appoint receiver of rents, and criminal prosecution.
Withhold Rent while the warranty of habitability has been broken
- a tenant can withhold rent and put that rent into an escrow account
- the key is holding the rent and not spending it. If the landlord attempts a Non-payment Eviction and the tenant does not have all of the original rent charged, a tenant can be at risk of eviction. If the tenants has the money, the eviction is dismissed and the judge rules on how much rent is owed
- see N.Y. Real Prop. Law § 235-b, Semans Family Ltd. Partnership v. Kennedy, 675 N.Y.S.2d 489 (N.Y. City Civ. Ct., 1998)
Repair and Deduct: make your own repairs for emergency issues and deduct the cost of the repairs from the rent
- see N.Y. Real Prop. Law § 235-b (Jangla Realty Co. v. Gravagna 447 N.Y.S.2d 338 (Civ. Ct., Queens County, 1981)