What is the warranty of habitability and how does it affect tenants?

Every apartment in New York is required to have a minimum of services guaranteed by the landlord. This is the warranty of habitability—a set of requirements that is guaranteed by law in every lease, whether it is stated explicitly or not—that landlords must abide by in order to keep your apartment and the building safe and livable at all times. These standards reassure tenants that their housing is safe and tells landlords what is required of them. 

It also means that conditions in your apartment should not compromise your health in any way. Tenants can argue they are entitled to withhold rent if a landlord violates the warranty of habitability by allowing the apartment to become unlivable. This includes neglecting to fix leaks, mold, or faulty electrical wiring, or deal with pests like rats and roaches. 

[Editor's note: An earlier version of this article was published in October 2021. We are presenting it again with updated information for May 2023.]

Identifying unsafe conditions

There’s a long list of other issues referred to by the New York State Unified Court System that could put a landlord in breach of this law, including kitchen problems related to your stove, oven or refrigerator; a lack of hot water or heat; malfunctioning radiators; broken toilets, sinks, or tiles; missing carbon monoxide or smoke detectors; faulty locks or intercoms; and windows that don’t work. 

If you are facing any of these conditions, your first step is to tell your landlord and give them an opportunity to fix the problem. If you’re a shareholder in a co-op, the board has a responsibility towards shareholders that mimics a landlord’s responsibility to tenants. 

In addition to your apartment being safe and habitable, the common areas of the building also need to be kept clean and sanitary. If you live in a rent-stabilized apartment there are also rules about so-called "required services." Under this rule, any service that you're being provided when you move into a rent-stabilized apartment must be continued.

This issue—as well as the warranty of habitability—were addressed during Brick Underground Office Hours—a live forum where questions were answered by tenant attorney Sam Himmelstein, a partner at Himmelstein McConnell Gribben & Joseph (and a Brick Underground sponsor). To find out about our next event subscribe to our newsletter. 

Proving a breach of the warranty of habitability

You shouldn't have to put up with unlivable conditions—the law is there to protect you. In some cases it might be difficult—and even expensive—to prove a breach of the warranty of habitability. For example, excessively noisy work by building staff might be keeping you awake but a judge will probably require proof that it's significantly above normal levels in order to find in your favor. 

Sometimes tenants can obtain rent abatements if an apartment or building falls into disrepair, the warranty of habitability is being breached, and the landlord isn't doing anything about it. It's always important to document conditions and put your complaints to the landlord in writing either in a letter or email. 

Withholding monthly payments—whether it’s rent or maintenance—based on a violation of the warranty of habitability has its risks. You could find yourself in housing court down the line for non-payment of rent, so if your landlord doesn't address the issues you've raised, getting legal advice is going to be important. 

If a landlord persistently refuses to fix a warranty of habitability violation, then you might have a case for a constructive eviction. Another outcome might be a court order requiring the landlord to make the repairs or restore services.  

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