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.

The warranty of habitability obligates your NYC landlord to keep your apartment safe, clean and fit for human habitation.

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The warranty of habitability was originally enacted in 1975 and codified under NY Real Property Law § 235-b in 1975, as shown below:

New York Real Property Law
§ 235-b

1. In every written or oral lease or rental agreement for residential premises the landlord or lessor shall be deemed to covenant and warrant that the premises so leased or rented and all areas used in connection therewith in common with other tenants or residents are fit for human habitation and for the uses reasonably intended by the parties and that the occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety. When any such condition has been caused by the misconduct of the tenant or lessee or persons under his direction or control, it shall not constitute a breach of such covenants and warranties.

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:

New York Real Property Law
§ 235-b

2. Any agreement by a lessee or tenant of a dwelling waiving or modifying his rights as set forth in this section shall be void as contrary to public policy.

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?

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 must my landlord make 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

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Can my landlord retaliate against the warranty of habitability complaints?

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:

New York Real Property Law

§ 223-b. Retaliation by landlord against tenant.

1. No landlord of premises or units to which this section is applicable shall serve a notice to  quit upon any tenant or commence any action to recover real property or summary proceeding to recover possession of real property in retaliation for:

a. A good faith complaint, by or in behalf of the tenant, to the landlord, the landlord’s agent or a governmental authority of the landlord’s alleged violation of any health or safety  law,  regulation, code, or ordinance, the warranty of habitability under section two hundred thirty-five-b of this article, the duty to repair under sections seventy-eight, seventy-nine, and eighty of the multiple dwelling law or section one hundred seventy-four of the multiple residence law, or any law or regulation which has as its objective the regulation of premises used for dwelling purposes or which pertains to the offense of  rent  gouging in the third, second or first degree; or

b. Actions taken in good faith, by or in behalf of the tenant, to secure or enforce any rights under the lease or  rental  agreement, the warranty of habitability under section two hundred thirty-five-b of this article, the duty to repair under sections seventy-eight, seventy-nine, and eighty of the multiple dwelling law or section one hundred seventy-four of the multiple residence law, or under any other law of the state of New York, or of its governmental subdivisions, or of the United States which has as its objective the regulation of premises used  for dwelling purposes or which pertains to the offense of rent gouging in the third, second or first degree;

Does the warranty of habitability cover noise complaints?

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.”

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

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:

If a tenant files a 311 complaint related to heat or hot water, HPD attempts to notify the building owner or managing agent and may also attempt to contact the tenant to see whether service has been restored. If service has not been restored, an HPD inspector will go to the building to verify the complaint and issue the appropriate violation. 

If an owner fails to restore heat and hot water after receiving a violation, HPD’s Emergency Repair Program (ERP) may contract with private companies to restore essential services and bill the owner for the cost of the repairs, plus related fees. The City is subject to laws governing procurement, contracting, and wages that may make such work significantly more expensive than the price the owner could obtain themselves. If the property owner fails to pay, the City will file a tax lien against the property. The tax lien will bear interest and may be sold and/or foreclosed to collect the amount owed through the City’s Tax Lien Sale.

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.

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

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.

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What happens if my NYC apartment becomes uninhabitable?

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.

Disclosure: Hauseit® and its affiliates do not provide tax, legal, financial or accounting advice. This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for, tax, legal, financial or accounting advice. No representation, guarantee or warranty of any kind is made regarding the completeness or accuracy of information provided.

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