Ask Sam: What kind of problems qualify me for a rent abatement?

Yes, certain problems will entitle you to a rent abatement, but don't assume you can start shrinking your rent checks the first time something goes wrong, says Sam Himmelstein, a lawyer with the firm Himmelstein, McConnell, Gribben, Donoghue & Joseph who represents residential and commercial tenants and tenant associations.

"Abatements are really hard to predict," Himmelstein says. "They're all over the map."

In New York, landlords are obligated to uphold the warranty of habitability, which means that your apartment is free of conditions that are "dangerous to life, health, and safety." And that wording "is very broadly construed" by the courts, Himmelstein says.

A few of the most common violations are issues like a lack of heat or hot water, leaks, and falling plaster, as well as environmental hazards like the presence of lead, asbestos, or construction dust. Inadequate building security and vermin infestation can also qualify as violations, Himmelstein says. (There are additional examples of common warranty of habitability violations.)

Keep in mind that you're not as likely to win an abatement for problems with your building's amenities or other extras.

"You're not going to get an abatement for a Warranty of Habitability breach because you can't use the swimming pool, or some other service is no longer provided," he says.

That is, if you're a market-rate tenant. If you're rent-stabilized or rent-controlled, on the other hand, you're entitled to a continuation of the services you had when you signed the lease, so if your building's pool becomes unusable, you can apply to the NYS Division of Housing and Community Renewal for a rent reduction.

One major exception: if the problem is caused by a labor stoppage—e.g. a pile-up of garbage during a sanitation workers' strike—landlords generally aren't held responsible, and you won't be entitled to lower rent. However, if a strike means the landlord saves money they would have spent paying workers who've walked out, they will be required to pass a certain amount of those savings onto tenants in the form of abatements.

As far as how much you'll get, Himmelstein says, "The amount of the abatement depends on the severity of the problem—how bad it is, and how many rooms are affected."

For instance, you'd get more of an abatement if you have leaks in your bedroom, bathroom, and kitchen than you would if it were just a leak in your bathroom. The standard abatement for lack of cooking gas is generally around 10 to 20 percent, but for cases involving a lack of heat or hot water, the abatement can be as high as 50 to 100 percent of your rent.

But if the problem you’re facing is related to pests, it can be difficult to predict the abatement, as it depends on the severity of the infestation.  

"There are plenty of cases where a tenant gets nothing or very little, and plenty where a judge finds a total breach and awards a 100 percent abatement," Himmelstein says. (The latter case usually happens if the apartment is in such bad shape that the tenant can't actually live there, due to issues like severe leaks or mold.)

Sometimes, tenants receive abatements because of bad conditions created by construction, like noise, dust, and general disruption.

“In recent years the attorney general has sued some landlords because of their harassment and construction conditions,” Himmelstein says. “These suits resulted in consent decrees, requiring these landlords to give their tenants a 25 percent abatement when doing major construction in the building.”  

If you think your apartment has problems that might qualify you for an abatement, as always, the first step is to notify the landlord in writing, either via email, fax, or certified mail. But if you can’t come to an agreement with your landlord, the next step is to withhold your rent, which will force your landlord to take you to court.

“You can then defend your case based on the breach of the Warranty of Habitability,” Himmelstein says. “Nintey-five percent of cases are settled by negotiating an abatement. You should go into them knowing what you’re looking for and what you’re willing to come out with.”

If the parties can’t agree, then the case will go trial and a judge will determine how much of an abatement you get, but this is rare.

Abatements can only happen "provided the tenant themselves didn't cause the problem (or prevent it from being fixed), and that the landlord was aware and didn't remedy the situation," Himmelstein says.

If you win your case, not only will you be awarded an abatement, but if you have an attorney, the landlord may very well be obligated to cover your legal fees, depending upon the language of your lease. Conversely, if the court doesn’t award you an abatement, you could be liable for the landlord’s legal fees, and if you obtain an abatement which is much smaller than the one you were seeking, the court might not award legal fees to either side. In addition, you might end up on the tenant blacklist, although the impact of being on the blacklist has been diminished due to the passage of the Housing Stability and Tenant Protection Act of 2019.

Related: 

Ask Sam: What is a reduction of services complaint, and when should tenants file one? (sponsored)

Ask Sam: My apartment is riddled with problems. Can I get my landlord to move me to a new one? (sponsored)

Ask Sam: Repairs are forcing me to move out for a month. Should my landlord pay for me to relocate? (sponsored)

Read all our Ask a Renters Rights Lawyer columns here.

Sam Himmelstein, Esq. represents NYC tenants and tenant associations in disputes over evictions, rent increases, rental conversions, rent stabilization law, lease buyouts, and many other issues. He is a partner at Himmelstein, McConnell, Gribben, Donoghue & Joseph in Manhattan. To submit a question for this column, click here. To ask about a legal consultation, email Sam or call (212) 349-3000.