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November 2, 2016

New York Law Journal

By: Eva C. Talel,

Under New York law, landlords, including boards of cooperative housing corporations, have an express obligation to provide residential tenants with premises that are fit for human habitation. This statutory warranty of habitability (WOH) is non-waivable and requires that residential tenants be provided with the essential functions of a residence and not be exposed to conditions that are dangerous, hazardous or detrimental to their life, health or safety. The residence must also conform with uses reasonably intended by the parties. Importantly, the WOH does not apply to condominium apartment owners because they have no landlord-tenant relationship (condominium apartment owners own their apartments in fee simple).

When the WOH is breached, the remedy is typically a rent abatement. The measure of damages is the difference between the fair market value of the residence as warranted and the value of the residence during the period of the breach. Courts will also take into account the length and magnitude of the breach, as well as the landlord’s/co-op board’s efforts to remedy the alleged breach. For co-op apartments, owners may seek an abatement in their monthly maintenance charges. Importantly, co-op apartment owners and tenants must meet certain predicate requirements in order to successfully assert a claim for breach of the WOH, including use of the apartment as a fulltime residence and occupancy of the apartment at the time of the alleged breach.

Our 2014 column addressed cases applying the WOH to secondhand smoke, noise, mold, lead-based paint and bedbug conditions. This column examines cases decided subsequent to publication of our 2014 column and analyzes how secondhand smoke, mold, bedbugs, intended uses of the residence and tenant/co-op apartment owner actions, impact on the courts’ application of the WOH.

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