C Tann-Starr

Paralegal 101: Landlord Tenant Series - Statutory Right to Repairs / Heat / Cleanliness

As previously mentioned, Warranty of Habitability issues may include (a) repairs, (b) clean premises complaints, (c) lack of hot water and/or (d) lack of heating. The road to tenants gaining a statutory right to repairs was a slow, bumpy one full of interesting litigation. Traditionally, the law in general was oriented toward protecting landlords, but as glaring inequities became apparent (remember the slum lords?) the trend in law began to shift with statutes being crafted to protect residential tenants as courts began to view the lease as a contract, not a conveyance. Court complaints documenting landlords failure to maintain the properties they collected rent from resulted in the New York courts mandating the housing code be the minimum standard of suitable habitability. Those rulings were a significant moment in New York real estate history. Take a moment to picture this:

Once upon a time (pre-1971), New York residents looking to lease space in a dwelling habitually signed rental agreements that placed a significant portion of the responsibility to maintain and repair the rental premises on them rather than their landlords.

Some people may say "As Is" isn't a legal term when it comes to describing the condition of personal or real estate property, however, I see that phrase added in a lot of the time (from banks selling short sales and foreclosures to owners selling dented cars). It's sort of like a phantom catch all phrase in case a hypothetical "We Consensus" missed listing any defects or some other issue that one may possibly want to litigate if the dispute can not be settled by other means and/or serious harm is suffered by people trying to deal with the reality of a less than stellar situation, but I digress...

Back in the day (pre-1971), some tenants accepted a landlord's "As Is" rental lease agreement predicate upon being willing to work with a space they deemed suitably habitable (a) based upon their visual observations, (b) working with an affordable price and (c) the statements and assurances made by the landlord during private negotiations for the apartment.

Problem was, once the tenant took possession, the "As Is" landlord was kinda off the hook regarding most obligations concerning the current and future condition of the premises. Ready to add insult to injury? Said landlord was entitled to collect his or her rent even if that landlord violated the agreement by failing to provide the services delineated in the lease.

The Fair Housing Act of 1968, 42 U.S.C. §§ 3601-3619, bars discrimination based on race, color, religion, sex, familial status, national origin, or handicap in connection with the sale or rental of most dwellings but had little to no effect regarding a slum lord refusing to fix and maintain the apartments of the poor. Furthermore, under the previous laws the courts viewed lease covenants as independent of each other. Thus, the landlord’s breach, no matter how egregious, did not excuse the tenant from his duty to pay rent...

Ready for the next insult to injury? Substandard New York rental housing became a major problem (remember the term ghetto?) as residential tenants, obligated to repair defects in their dwellings, were unable to do so even if willing...

As a student of this recession you should be expecting the real estate laws to evolve as more housing issues come to light. As of this writing, Attorneys have some interesting tools to help assist tenants and landlords to resolve some of their problems... just not all of them...

New York Multiple Dwelling Law, Title 3, Sanitation and Health, § 78, Repairs:

"1. Every multiple dwelling, including its roof or roofs, and every part thereof and the lot upon which it is situated, shall be kept in good repair. The owner shall be responsible for compliance with the provisions of this section; but the tenant also shall be liable if a violation is caused by his own willful act, assistance or negligence or that of any member of his family or household or his guest. Any such persons who shall willfully violate or assist in violating any provision of this section shall also jointly and severally be subject to the civil penalties provided in section three hundred four."

"2. Whenever, the light, ventilation, or any matter or thing in or about a multiple dwelling or part thereof, or in or about the lot on which it is situated, is in the opinion of the department in a condition or in its effect dangerous to life or health, the department may order or cause any such light, ventilation, matter or thing to be repaired or improved or, as provided in section three hundred nine, take such other action as it may deem necessary to remove such danger to life or health."

New York Multiple Dwelling Law, Title 3, Sanitation and Health, § 79, Heat:

"1. Every multiple dwelling exceeding two stories in height and erected after April eighteenth, nineteen hundred twenty-nine, and every garden-type maisonette dwelling project erected after April eighteenth, nineteen hundred fifty-four, shall be provided with heat. On and after November first, nineteen hundred fifty-nine, every multiple dwelling shall be provided with heat or the equipment or facilities therefor. During the months between October first and May thirty-first, such heat and the equipment or facilities shall be sufficient to maintain the minimum temperatures required by local law, ordinance, rule or regulation, in all portions of the dwelling used or occupied for living purposes provided, however, that such minimum temperatures shall be as follows: (a) sixty-eight degrees Fahrenheit during the hours between six o'clock in the morning and ten o'clock in the evening, whenever the outdoor temperature falls below fifty-five degrees Fahrenheit, notwithstanding the provisions of paragraph a of subdivision four of section three of this chapter, and (b) at least fifty-five degrees Fahrenheit during the hours between ten o'clock in the evening and six o'clock in the morning, whenever the outdoor temperature falls below forty degrees Fahrenheit. Nothing in this section shall be deemed to relieve any owner of the duty of providing centrally supplied or other approved source of heat prior to November first, nineteen hundred fifty-nine in any case where such heat is required by this chapter or any other law, ordinance, rule or regulation to be supplied in a dwelling prior to said date. The heating system in dwellings used for single room occupancy shall be in conformity with the requirements of section two hundred forty-eight."

"2. The provisions of subdivision one shall not apply to any dwelling (a) which is located in a resort community and is rented or occupied on a seasonal basis between April fifteenth and October fourteenth during any calendar year and is not occupied for living purposes during the remainder of such year, except that occupancy of any such dwelling by the family of a caretaker thereof or by the family of the owner thereof during the remainder of the year shall be permitted; or (b) which the department of city planning certifies is in an area to be acquired for a public improvement or for development or redevelopment and for which (1) a request for acquisition has been submitted to the mayor by a public agency or (2) a plan for a development or redevelopment project has received preliminary or first approval of the city planning commission; or (c) for which a demolition permit has been or shall be issued by the municipality pursuant to local law or ordinance."

"3. The exemption provided in subdivisions two (b) and two (c) of this section shall be valid for a period of six months after the date of the approval of the slum clearance or urban renewal plan or the date of such certification or the date of the issuance of the demolition permit, as the case may be, but such exemption may be extended from time to time by the department provided, however, that such exemption shall not extend beyond November first, nineteen hundred sixty-one."

New York Multiple Dwelling Law, Title 3, Sanitation and Health, § 80, Cleanliness:

"1. The owner shall keep all and every part of a multiple dwelling, the lot on which it is situated, and the roofs, yards, courts, passages, areas or alleys appurtenant thereto, clean and free from vermin, dirt, filth, garbage or other thing or matter dangerous to life or health."

"2. The owner of every multiple dwelling or part thereof shall thoroughly cleanse and keep clean at all times, to the satisfaction of the department, every public or service part thereof, including every room, passage, stair, floor, window, door, wall, ceiling, water-closet or toilet compartment, cesspool, drain, hall and cellar in such public or service part."

"3. All carpets and rugs which are permitted in any public part of a multiple dwelling shall be taken up and cleaned by the owner at least once a year or as much oftener as the department shall deem necessary."

"4. The interior surfaces of walls throughout every part of every multiple dwelling, whether in public or in tenant-occupied parts, shall be painted or papered and the ceilings kalsomined or painted by the owner. The walls and ceilings shall be rekalsomined, repapered or repainted by the owner whenever necessary to keep the said surfaces in a sanitary condition. No wall paper shall be placed upon such a wall or ceiling surface unless all existing wall paper shall be first removed therefrom and such wall or ceiling thoroughly cleaned and repaired."

"5. Any tenant shall be punishable as provided in section three hundred four for the existence of conditions in violation of the provisions of this chapter within his apartment to the extent that such conditions are caused by him, by members of his family or by his guests, and are under his control; but this provision shall not be construed to relieve the owner of any liability or duty under this section, except where a violation is caused and continued solely by the tenant or those under his control."

"6. Every dwelling erected after January first, nineteen hundred forty-seven, shall be so constructed as to be rat-proof. The agency of a city authorized by law to make rules supplemental to laws regulating construction, maintenance, use and area of buildings shall have the power to make rules and regulations to supplement the requirements of this subdivision."

Paralegal 101: Landlord Tenant Series - Hot Water

Warranty of Habitability issues may include (a) repairs, (b) clean premises complaints, (c) lack of hot water and/or (d) lack of heating. Here is an interesting bit of trivia: Did you know that if a multiple dwelling building was constructed in New York before mid April 1929 that did not require hot water to be furnished at the time of its original construction a landlord able to prove this would not be under the mandatory requirement to supply hot water 24 hours a day? Hmm... Those base dates mentioned in my previous post are starting to get your attention, eh? Seems every regulation has a start date...

New York tenants actually have a statutory right to hot water, so when exemptions come up people need to be reasonable and pay attention when someone tells you something you do not necessarily want to hear... I am from New York City, so in my neck of the residential woods a building with three or more residential units is considered a multiple dwelling.

New York Multiple Dwelling Law, Title 3, Sanitation and Health § 75 Water Supply:

"1. In every multiple dwelling erected after April eighteenth, nineteen hundred twenty-nine, where space is provided for cooking there shall be in every apartment a proper sink with running water and with a two-inch waste and trap."

"2. The owner of every multiple dwelling shall provide proper appliances to receive and distribute an adequate supply of water, to and in every apartment or suite of rooms at all times of the year, during all hours. Failure in the general supply of water from the street service main shall not be construed as a failure on the part of the owner, if suitable appliances to receive and distribute such water have been provided in the dwelling."

"3. For dwellings three or more stories in height erected on or after April eighteenth, nineteen hundred twenty-nine, and for all dwellings erected after January first, nineteen hundred fifty-one, such supply shall include both hot and cold water at all times of the year, during all hours, except that hot water service shall not be required by this section in a dwelling erected before April eighteenth, nineteen hundred twenty-nine, if the owner establishes to the satisfaction of the department that such service was not furnished or required before such date."

"4. No multiple dwelling shall be erected unless it is connected with a street service water main."

"5. No required sink shall be placed within any water-closet compartment or within any bathroom containing a water-closet."

Paralegal 101: Warranty of Habitability

New York State Real Property Law, Article 7, § 235-b: Warranty of habitability:

"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."

"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."

"3. In determining the amount of damages sustained by a tenant as a result of a breach of the warranty set forth in the section, the court; (a) need not require any expert testimony; and (b) shall, to the extent the warranty is breached or cannot be cured by reason of a strike or other labor dispute which is not caused primarily by the individual landlord or lessor and such damages are attributable to such strike, exclude recovery to such extent, except to the extent of the net savings, if any, to the landlord or lessor by reason of such strike or labor dispute allocable to the tenant's premises, provided, however, that the landlord or lesser has made a good faith attempt, where practicable, to cure the breach. (c) where the premises is subject to regulation pursuant to the local emergency housing rent control law, the emergency tenant protection act of nineteen seventy-four, the rent stabilization law of nineteen hundred sixty-nine or the city rent and rehabilitation law, reduce the amount awarded hereunder by the total amount of any rent reduction ordered by the state division of housing and community renewal pursuant to such laws or act, awarded to the tenant, from the effective date of such rent reduction order, that relates to one or more matters for which relief is awarded hereunder."

Those three little paragraphs hold so much meaning to parties entering into a rental agreement...

In New York, this section of law reflects in sum and substance the fact that landlords entering into written or oral lease agreements with tenants must maintain the property and dwelling in a condition that is (a) free from conditions detrimental to health and safety while being fit for human habitation and (b) in accordance with agreed upon / required services.

What is an agreed upon service? Examples include allowing a tenant to use a portion of storage space for a bicycle, Christmas tree, file bins, travel trunks, etc. A tenant should not assume just because the guy in Apt # 1A always parks his bike in the basement that everyone may line their bikes up in that general, designated area. Each resident must obtain usage permissions from his/her landlord and abide by the rules of the building regarding permissible usage.

What is a required service? Examples include rectifying any condition that violates a New York housing code, adhering to the New York City Rent Regulatory Laws (e.g. Rent Control, Rent Stabilization, etc) and services with base dates designated in regulatory laws or granted by the lease agreement.

My life as an example: I have been in my current rent controlled apartment since 1993. All services that were in effect in New York City on March 1, 1943 are REQUIRED services for my building. My rent control base date is from 1943 although my occupancy date is from 1993.

In New York City there are two rent stabilization base dates. Contrary to popular belief they are actually important for you to know because these two base dates determine REQUIRED services for apartments subject to New York City Rent Stabilization:

(A) Pre 1947 Construction: May 29th, 1974 for stabilized apartments ON or AFTER July 1st, 1974.

(B) Post 1947 Construction: May 31st, 1968 for stabilized apartments ON or BEFORE June 30th, 1974.

Our invisible New York City rent stabilization lines were divided June 30/July 1, 1974 into PRE and POST 1947 construction. If you are are a renter looking to secure rent reductions for lack of services or a landlord staring at an expensive painters bill because your tenant picked out special paint because you failed to paint her apartment every three years this conversation may suddenly become very interesting to you (LOL).

Your attorney is the correct venue to render a legal opinion and to craft all complaints and defenses within the confines of the applicable laws. Your real estate practitioner is not the correct venue and Paralegals do not render legal opinions. Don't ask people who are not lawyers for legal advice or you may find yourself watching the landlord covering that expensive, custom color latex paint job with cheap, white water-based flat paint while thanking you for reminding him he had three days left and it was time to paint your apartment (LOL). ;-)