Warranty of Habitability

In every apartment rental, there is an implied covenant that the landlord is to provide the tenant with a premises that is fit for human habitation--that is, an apartment that is in good repair and free from conditions that are hazardous to health, life, or safety.

This right is established in New York landlord-tenant law by statute, N.Y. Real Prop. Law S 235-b, and by the Court of Appeals in Park West Management Corp. v. Mitchell, 47 N.Y.2d 316, 418 N.Y.S.2d 310, 391 N.E.2d 1288 (1979). This right that all tenants have cannot be waived in a lease agreement.

A violation of the housing or sanitary code may also be a violation of the warranty of habitability. These standards are a starting to point for determining the minimal conditions that housing must meet in order to be habitable. As the Court of Appeals has stated:

To be sure, absent an express agreement to the contrary, a landlord is not required to ensure that the premises are in perfect or even aesthetically pleasing condition; he does warrant, however, that there are no conditions that materially affect the health and safety of tenants.

Courts will determine the magnitude and duration of a bad condition in the apartment, and how it impacted the tenant, in deciding whether there has been a breach of the warranty of habitability. For instance, lack of heat or hot water are clearly violations, while judges have a good deal of discretion to determine if other less onerous conditions will qualify.

What Tenants Can Do

It is important to remember that the landlord must have notice of the bad condition in the apartment, and failed to promptly repair it, in order for there to be a successful breach of warranty of habitability claim.

Tenants should always: (1) provide written notice of bad conditions to their landlords, and (2) take photographs and keep charts or diaries of the bad condition. New York City tenants may also call 311 and/or Housing Preservation and Development (HPD) to complain about building conditions and order an inspection.


Damages are provided through a rent abatement; that is, they are determined by taking the fair market value of the apartment and subtracting from it the reduced value of the apartment during the period that the bad conditions existed.

For instance, if the tenant owes 2 months rent at a monthly rental amount of $1,500, and it is determined by a judge that the reduced value of the apartment during that time period was $1,200, the tenant would be awarded damages of $300 per month for a total of $600 for the 2-month period.

A non-payment case is the only type of eviction case in which this defense may be raised, though it can be the basis for an affirmative legal action against the landlord.

If you are a New York City tenant with a claim for bad conditions in your apartment, you can contact New York City Tenant Lawyer Eric Dinnocenzo at (212)933-1675 for a free consultation.