What Is the Warranty of Habitability in NYC Real Estate?

The warranty of habitability is a set of legal protections for renters in NYC which obligates your landlord to keep your apartment safe, clean and in a condition which is “fit for human habitation” at all times.

These obligations also extend to building common areas and mechanicals such as the lobby, hallways, stairs, fire escapes, elevators and boilers.

Example violations of the warranty of habitability include lack of reliable heat or hot water, electrical problems such as non-working outlets, mold, broken appliances, a vermin infestation or persistent roof leaks. Refer to this fact sheet for a longer list of other issues which violate the warranty of habitability.

The warranty of habitability was originally enacted in 1975 and codified under NY Real Property Law § 235-b in 1975, as shown below:

In summary, the warranty of habitability warrants that the leased premises are:

• Fit for human habitation

• Fit for the uses reasonable intended by the parties

• Not dangerous, hazardous or detrimental to the life, health or safety of the tenant

As a tenant in NYC, you are automatically protected by the warranty of habitability regardless of whether it’s mentioned in your lease. Moreover, per the law, the warranty of habitability cannot be modified or waived based on language in your lease.

This means any lease provision which attempts to alter the warranty of habitability is unenforceable:

The warranty of habitability also obligates your landlord to maintain any amenities, services or conditions which you were advised of upon move-in, even if said offerings are not required by law. Examples include a private roof-deck, central air-conditioning, a jacuzzi tub or a sauna.

While the warranty of habitability provides you with strong protections as a tenant, it does not protect you against yourself. If you as the tenant cause or create any conditions which violate the warranty of habitability, you must correct the problem and your landlord is not responsible.

If, for example, you fail to clean and dispose of waste in a timely manner and it results in a roach problem, the landlord is not responsible for eradicating the infestation. Similarly, if you hold an unauthorized party on your roof which results in damage to the roof membrane and ongoing leaks into the ceiling of your penthouse apartment, you are responsible for shouldering the cost of repairs.

What remedies exist if my NYC landlord violates the warranty of habitability?

How quickly must my landlord make repairs?

Can my landlord retaliate against the warranty of habitability complaints?

Does the warranty of habitability cover noise complaints?

What if my NYC apartment doesn’t have heat or hot water?

Does the warranty of habitability require NYC landlords to provide air conditioning?

What happens if my NYC apartment becomes uninhabitable?

If you believe the warranty of habitability has been violated, the first thing you should do is document and disclose the condition in writing to your landlord. We recommend sending this via certified mail (with tracking) along with a courtesy copy via email.

Be sure to take copious amounts of photos and videos to thoroughly document the conditions.

If the landlord fails to rectify the issues in a timely manner, call 311 to report the issue to Housing Preservation & Development (HPD).

We suggest repeatedly documenting and disclosing the ongoing problem in writing to your landlord. Having a stronger paper trail will give you a more compelling case in the event that court proceedings are required.

If the issues persist after disclosing them to the landlord and reporting to HPD 311, you have the following remedies:

• Take your landlord to court by initiating an “HP action” (also known as a HP Proceeding).

• Sue your landlord for a rent abatement in Civil Claims Court

• Withhold rent until the landlord makes necessary repairs

• Make the repairs on your own and deduct the associated cost from your rent

HP Proceeding

A HP proceeding is when a tenant goes to Housing Court and brings a case against a landlord to force them to make repairs and provide essential services, like consistent heat and hot water.

You do not need a lawyer to initiate a HP proceeding in NYC. To get started, go to the Clerk’s Office at the Housing Court.

The clerk will provide you with the following forms:

• Order to Show Cause Directing the Correction of Violations (HP Action)

• Verified Petition in Support of an Order to Show Cause Directing the Correction of Violation

The petition will ask you to itemize all conditions in need of repair.

Per the New York City Housing Court, “you may also request an inspection of the conditions from the Department of Housing Preservation and Development by filling out a Tenant’s Request For Inspection.”

Civil Claims Court

Alternatively, you can sue your landlord for violating the warranty of habitability in Civil Claims Court. 

Withhold Rent

You may choose to withhold rent until the issue is cured. This is a rather aggressive option, as it means the landlord will likely sue you for non-payment. You will then have to further escalate by raising the defense of breach of warranty of habitability and making a counterclaim for rent abatement. This will require you to hire a real estate attorney.

The court will decide what constitutes an appropriate rent deduction based on the severity of the conditions in your apartment.

Bottom line is that this method is highly likely to result in time consuming, costly and inconvenient litigation which may ultimately cost more than the rent you withheld since it will distract you from work and cause emotional turmoil.

Make Your Own Repairs

Another aggressive response to a prolonged violation of the warranty of habitability is to take matters into your own hands by repairing the issue(s) and deducting the associated remediation cost from your rent.

This method is discouraged unless you are acting on the advice of counsel. Moreover, this should only be considered in emergency situations after you’ve given the landlord written notice.

Be sure to extensively document the issue with photos and videos and to save all records associated with the cost of the repairs.

How quickly your landlord must make repairs depends on the classification of the violation. This is outlined in §27–2115 of the New York City Housing Maintenance Code (HMC):

• Non-hazardous violations must corrected within ninety days from the date of mailing of the notice

• Hazardous violations must be corrected within thirty days from the date of mailing of the notice

• Immediately hazardous violations must be corrected within twenty-four hours from the date of mailing of the notice

It is illegal for your landlord to retaliate against any complaints you make concerning violations of the warranty of habitability.

The Housing Stability and Tenant Protection Act of 2019 specifically added warranty of habitability complaints to the list of protections under NY Real Property Law § 223-b. Retaliation by landlord against tenant:

The warranty of habitability extends to severe, excessive or chronic noise. Keep in mind that the standard upheld by courts for what constitutes a noise violation in NYC is quite high since it’s an urban area.

Nevertheless, be sure to document conditions and disclose them to your landlord as a first step if you feel that you’re being subjected to severe, excessive or chronic noise.

If the noise is coming from a neighbor, we suggest making a good faith effort to work it out diplomatically prior to escalating and involving third parties.

The most problematic neighbor is typically the person who lives upstairs, since it’s often easy to hear them walking around. Noise from upstairs neighbors is a particular problem in townhouses and pre-war buildings since there is less insulation between floors.

Installing rugs or carpeting can help, but this isn’t required by law. According to the NYC rent guidelines board, “There is no regulation governing carpeting. However, many leases include a clause requiring the tenant to cover a certain percentage (usually around 80%) of the floor space with a rug or carpet. You may want to read your lease for this provision. If it is contained in your lease, it is very likely that it is in the leases of other tenants in your building.”

NYC landlords are obligated under warranty of habitability to provide hot water at 120 degrees year-round and to provide adequate heating during “Heat Season” which generally runs from October 1st through May 31st.

Landlords must maintain the following minimum heating standards during Heat Season, according to NYC HPD:

• DAY: Between the hours of 6:00am and 10:00pm, if the outside temperature falls below 55 degrees, the inside temperature is required to be at least 68 degrees Fahrenheit.

• NIGHT: Between the hours of 10:00pm and 6:00am, the inside temperature is required to be at least 62 degrees Fahrenheit.

If you do not have reliable heat or hot water, the first thing to do is to alert your landlord in writing. If your landlord does not resolve the issue in a timely manner, consider reporting it to 311. HPD takes the following action based on a heat or hot water complaint:

Landlords who fail to provide tenants with heat and hot water may be subject to fees of $250-$500 dollars per day for each initial heat or hot water violation. Landlords may be fined between $500-$1,000 per day for each subsequent violation at the same building during the same and/or the next calendar year from the initial violation or, during the same and/or the next heat season. 

Landlords are also charged $200 per inspection after the first two, provided it results in a heat violation within the same heat season (October through May) or a hot water violation within a calendar year.

The warranty of habitability does not require NYC landlords to provide air conditioning. 

However, if a unit was advertised as having air-conditioning, the landlord is required per the warranty of habitability to provide and maintain the A/C system for the duration of your lease.

In other words, if a landlord promises an amenity such as air-conditioning, it is covered by the warranty of habitability even if the law doesn’t require the landlord to offer said amenity.

If your apartment becomes uninhabitable due to fire, water damage or natural disaster such as a hurricane, you may be allowed to cancel the lease upon three days’ notice to your landlord.

Doing so will obviate your responsibility to pay any remaining rent owed from the time you vacate to lease maturity.