Tag Archives: warranty of habitability

Current Landlord-Tenant Issues in the Wake of Hurricane Sandy

In the past couple of weeks, I have been assisting a number of New York City residents affected by Hurricane Sandy with landlord-tenant issues.  So many NYC residents continue to suffer in Sandy’s aftermath.  While we all like to imagine that the City is pulling together and helping each other – and many are – there are still others who are using this tragedy for personal gain.

My first post-Hurricane clients, a couple from Sheepshead Bay, Brooklyn, called in a panic because their management company informed them that they needed to move out immediately after the hurricane hit.  My clients did not dispute that their apartment was completely destroyed.  They had moved in temporarily with friends, and had found a new, permanent residence.  Unfortunately, their new apartment would not be ready for move-in for three days, and they could not retrieve what was left of their belongings from their destroyed home in the meantime because they lacked storage.  Scared, homeless, living without heat or electricity, having lost almost all of their worldly possessions – and their management company was applying such pressure on them to move their possessions out immediately that they were forced to waste precious time seeking legal assistance, rather than attending to their most basic needs.

An even more egregious case came to me from a young professional man in Red Hook, Brooklyn.  My client was facing a similar situation – a landlord applying inordinate pressure to vacate an apartment following the hurricane – only this time, the apartment was not even destroyed.  It had sustained very minor damage, of the sort that any competent handy man could repair in a day or two of work while the tenant continued to live in the apartment.  However, the landlord, upon receiving a large payment from FEMA and/or insurance, decided to gut renovate the building so that the units could be re-rented at higher monthly rates.

My advice to both sets of clients was largely the same:  STAY.  Landlords cannot evict tenants without a court order, and that takes considerable time.  Given that many of the city courts remained closed for an extended period of time post-hurricane, it was highly unlikely that the management company for my Sheepshead Bay clients could have gotten an eviction order during the measly three days that my clients sought to remain in possession of their destroyed apartment.  The management company is not entitled to lock the tenants out or remove their property from the premises – only a sheriff or marshal can physically evict a tenant, and only with a court order.  The clients cannot be deemed to have abandoned their interest in the apartment, given the circumstances and short duration of their absence.  For my Red Hook client, I informed him that he has a lease, and as long as he provides his landlord access to the apartment to make appropriate repairs, he is entitled to remain in possession of his apartment.

Unfortunately, however, there is the law, and there is the practical reality.  The management company in Sheepshead Bay is not entitled, even under these emergency circumstances, to engage in what we call “self-help” eviction.  It can’t forcibly remove my clients or their property from the premises.  Does that mean it won’t happen?  Unfortunately, no.  And, with the courts closed or operating at less-than-full capacity, and the NYPD attending to much more pressing matters, there is little infrastructure available to enforce even these most basic tenant rights.  My Red Hook tenant intends to stay in his home, and he has every right to.  But I was forced to counsel him as to the practical reality:  Yes, you can stay, as long as you pay your rent and allow your landlord access to make repairs.  But don’t expect a renewal lease, so eventually you will need to move.  And, between now and then, fully expect your landlord to make your life as miserable as possible because you didn’t cave to his demands.  Your landlord needs to repair the heating mechanism and have power restored promptly.  But if your fellow tenants have moved out and you’re the last tenant standing, don’t expect your comfort to be a priority for the landlord, even if it is his legal obligation to ensure that your living situation complies with the warranty of habitability.

These issues are frightfully common right now, particularly in the outer boroughs.  If you or someone you know is on the receiving end of these or similar tactics, don’t hesitate to contact this office, or one of the many legal assistance helplines established to assist with Hurricane Sandy’s aftermath.

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Welcome to the Neighborhood: Part Three

After the record temperatures set in NYC this summer, the last thing many new tenants might be thinking about is a landlord’s duty to maintain heat in their apartments.  They might rather have the heat permanently shut off – or perhaps they’re currently petitioning for better access to air conditioning!

However, with Labor Day’s unofficial end to summer came a barely perceptible change in the air, just enough to remind all of us that the Summer of 2012 is on its way out, and fall is on its way in, with cooler temperatures.  The comfortable warmth of early September will give way to the long sleeves of early October and the fleece jackets of early November until, eventually, the first snow hits all of us like a ton of bricks.  Is last winter any indication?  Dare we hope that we can effectively miss two winters in a row?  Or will this winter sock the city like none other in retaliation?

Assuming that this winter will, at the very least, bring with it “normal” temperatures of between 25-50˚, it’s likely to get a bit chilly, especially in some of the older buildings in the city.  Since, as we previously discussed, insufficient heat is a breach of the warranty of habitability, landlords are required to provide heat to tenants during the colder months, specifically October 1 to May 31.  But just what does that mean?

Let’s take a look at a hypothetical.  A tenant has just moved to NYC from Miami.  She is not accustomed to long sleeves, and doesn’t care to be.  She likes her apartment maintained at a balmy 80˚ at all times, which she makes clear to her landlord upon signing the lease for an apartment in the city.

All is well until the tenant returns from Miami after Thanksgiving, when a cold snap hits the city with temperatures in the mid-30’s.  She is furious to find that her apartment temperature is a mere 70˚ when she gets in from the airport at 8:00 p.m.  What recourse does our tenant have?

Unfortunately, while New York City law requires landlords to provide “sufficient” heat in order for residences to be deemed “habitable,” this is not a subjective standard.  Tenants are not entitled to have heat maintained at whatever temperature they find most comfortable for them.  Between October 1 and May 31, between the hours of 6:00 a.m. and 10:00 p.m., if the outside temperature falls below 55˚, every dwelling unit must be heated to a minimum temperature of 68˚; between the hours of 10:00 p.m. and 6:00 a.m., if the outside temperature falls below 40˚, every dwelling unit must be heated to a minimum temperature of 55˚.  So, under these circumstances, 70˚ at 8:00 p.m., the landlord has provided adequate heat, and the tenant’s only recourse is to wear a sweater or buy a space heater (at her own expense), provided that this is not otherwise prohibited by law, regulation or contract.

Let’s say, however, that the tenant spends Christmas in Miami, and when she returns to her apartment from the airport at 11:00 p.m., the outside temperature is 30˚, and the temperature inside the apartment is 50˚.  What should the tenant do now?

In this case, the landlord is not supplying sufficient heat to the tenant’s apartment.  The first step is for the tenant to call the landlord and demand heat.  Even though it’s the holiday season, even though it’s late at night – CALL THE LANDLORD.  If the landlord does not respond promptly (say, within 2-3 hours), and the lack of heat is causing significant discomfort, then call 311 to speak with someone in the Citizen Service Center and to lodge a complaint.  Bureaucracy being a lumbering beast, it may take a while for the City to file a violation against the landlord, and longer still for the City to deem it necessary to procure emergency repair services from a private vendor.  In the meantime, if heat is not restored and the situation is profoundly uncomfortable or dangerous for the tenant, other remedies, such as an emergency court order, may need to be explored.

In the next part in this series, we’ll take another look at what happens when a unit needs repairs, and the landlord’s conduct leaves much to be desired.

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Welcome to the Neighborhood: Part Two

So, picking up from where we left off – let’s say the joint landlord-tenant inspection revealed that a closet door did not fully close.  The tenant took date-stamped pictures of the defect, so it’s clear that this was a pre-existing defect, and not caused by the tenant.  The landlord promised to fix the problem before the tenant moved in, but when moving day rolled around, the tenant noticed that the closet door was still broken.  What happens next?

Like most new tenants, this hypothetical tenant noticed the problem, but was too busy unpacking boxes and starting up utilities to deal with the broken closet door.  The closet also was likely not a top priority for the tenant because, while a non-closing closet door is an annoyance, it’s probably not a threat to the tenant’s health or safety.  In real estate parlance, we would say that the closet door defect is not a breach of the warranty of habitability, which is a guarantee provided for by New York state law (even if it’s not written into a lease) requiring that every landlord maintain every residential premises in a safe and habitable condition.  This is actually not a particularly high bar: it simply means that every residential unit must be maintained at a level safe for humans to live there, no more, no less.  Sufficient heat and proper sanitation fall under the warranty of habitability; minor structural problems, like a broken closet door, do not.

However, the tenant in this situation is not completely without recourse.  Landlords do have an obligation to repair known defects, and since the closet door defect was revealed by an inspection, and the landlord was clearly aware of the problem and promised to fix it, the landlord would be expected to repair the closet door.  (This is why the move-in inspection, even if it is performed after the lease is signed, is so important!)  In this case, the landlord promised to fix the closet door before the tenant moved in.  This didn’t happen.  First and foremost, the tenant should call the landlord and remind him to fix the closet door.  Hopefully, the landlord will promptly fix it, or make arrangements for someone else to fix it, and that will be that.  Occasionally, however, more effort will be required to get the desired result.

If the landlord doesn’t respond in a reasonable amount of time (say, three to five days) after you call the landlord to request the repair, the next step is to send a letter.  This should be a relatively formal business letter, stating that x repairs were promised on y date, the repairs were not made on time, the tenant called the landlord on z date, and the landlord has still failed to make the repairs.  The letter can still be conversational and friendly in tone, however, as the goal is to coax action out of the landlord, not to alienate him and damage the landlord-tenant relationship.  It is best to send the letter via certified mail, return receipt requested, even if the landlord lives in the same building.  This is so that you have proof that you sent the letter to the landlord, and the landlord received it, should such proof ever be necessary down the road.

If the landlord still does not respond, you need to decide what the closet door repair is really worth to you.  Will it impact your life in a major way if the closet door does not close all the way?  Will this be a hardship for you, your family or your guests?  Since it is a relatively minor repair, it likely is not worth reporting your landlord to local agencies, or engaging in litigation, unless this defect really will cause you a genuine, significant hardship.  You can always ask if the landlord would rather have you arrange for someone else to make the repair instead, and then deduct the cost from your rent, but you must be careful: this sort of arrangement seems to attract litigation.  What you consider to be a reasonable cost for the repair may not comport with your landlord’s view, and when you try to deduct the full cost of the repair from your rent the next month, you could be inviting a world of trouble for months to come.  I would say it’s generally a good rule of thumb not to go out of pocket on repairs expecting reimbursement if you have any other alternative.  If you decide that the effort to force the landlord to repair the closet door outweighs any potential benefit of taking further action, at least you documented your efforts to get the repair made, which will be important at the end of the tenancy in case the landlord attempts to deduct money from your security deposit to repair the door.

In our next installment, we will explore a situation in which a serious defect develops after the inspection, and the steps necessary to resolve such a situation.

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