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Steps a Tenant Should Take if a Landlord is Failing to Uphold the Warranty of Habitability - an Excerpt from Michelle Itkowitz's Lawline CLE on Landlord and Tenant Litigation in New York

On October 3, 2017, Michelle Maratto Itkowitz taught Session 5 of a seven-part continuing legal education program for Lawline on Landlord and tenant Litigation in New York. Session 5 was "Residential Landlord and Tenant Law - Special Issues".

Residential landlord and tenant law is, in many ways, a more difficult area of law than commercial landlord and tenant law. This is so because many of the provisions of a residential lease are, essentially, meaningless. A lease, for example, might say that a residential tenant is prohibited from subletting, but that is simply not the case. We approach Session 5 from the point of view of myth-busting, and track a standard residential lease and point out all the rights that a residential tenant actually has and that a landlord of a residential premises must respect and be mindful of.

HERE IS A CLIP - New York City Short Term Leasing Law: What Is Prohibited?

And below is an excerpt from the 41-page, 22-footnote materials, which accompanied this program:

STEPS A TENANT SHOULD TAKE IF LANDLORD IS FAILING TO UPHOLD THE WARRANTY OF HABITABILITY 

G. First Steps for Tenant If Landlord Is Failing To Uphold the Warranty of Habitability

Just as we began in Session One talking about how a Landlord had to do his homework and his legwork to properly prepare to prosecute a landlord and tenant matter, in this instance we emphasize that a Tenant has to prepare for a legal battle regarding repairs and warranty of habitability issues. 

1. Pictures, Complaints, Letters, and Logs

If the Landlord appears to be violating the Warranty of Habitability, the Tenant should document the problem thoroughly. 

A picture is worth a thousand words. Pictures of the conditions should be taken, saved and dated. Videos are even better, especially if the condition is dynamic, such as a leak. 

Complaints to the Landlord should be made through the building’s formal complaint process, if there is one, and copies of such complaints should be saved. If there is no formal complaint process or if the formal complaint process is getting Tenant and unsatisfactory response, then Tenant should write a letter to management, and, of course, keep a record of the email or send the letter by certified or overnight mail so there is a record. 

Also, if the condition is repetitive, such as a leak or an odor, or if the condition is something that cannot be photographed, such as an odor - keep a log, preferably in a spreadsheet. The spreadsheet should have three columns:

Date and Time
What Happened
Backup (pictures, 311 reference numbers, other witnesses names)  

Example:




2. Complaints to City Agencies

If the Landlord appears to be violating the Warranty of Habitability, the tenant should report the Landlord to the New York City Department of Housing Preservation and Development, the City agency that is responsible for enforcing the New York State Multiple Dwelling Law and the New York City Housing Maintenance Code. If the Tenant’s issue concerns elevators, renovations occurring in the building, demolitions, or structural conditions, then the tenant should contact the New York City Department of Buildings.

Tenant will have to make time in his or her schedule to grant access to New York City inspectors. Violations issued by these agencies appear online:

HPD:  http://www.nyc.gov/html/hpd/html/home/home.shtml

DOB:  http://www.nyc.gov/html/dob/html/home/home.shtml

H. Next Steps if Landlord Does Not Effectuate Repairs

If the Landlord appears to be violating the Warranty of Habitability and complaints, letters, pictures, logs, and complaints to City agencies are not getting the Tenant anywhere, the Tenant can approach the situation in the following ways.

1. Withhold Rent, Get Sued, Argue About it in the Nonpayment Proceeding

The Tenant can inform the Landlord in writing that Tenant is withholding rent over the condition, and deposit the rent in an escrow account, pending the conditions being fixed. Then when the Landlord sues the Tenant for nonpayment of rent, Tenant can raise the repair issues as a defense to the nonpayment proceeding and the repairs can be dealt with in the context of the nonpayment proceeding.

In my opinion, it is important that the Tenant put the money in an attorney escrow account or some other segregated holding place. It becomes tempting for a Tenant who has not paid the rent to spend the extra money on hand on something else, hoping that it never comes due as rent. Inasmuch as there are no guaranties in litigation, this is a very dangerous idea.

2. Do an HP Proceeding

New York City Civil Court Act § 110 sets up the mechanism for Tenants to seek enforcement of state and local laws for the maintenance of housing standards, including, but not limited to, the Multiple Dwelling Law and the Housing Maintenance Code, Building Code and Health Code of the administrative code of the City of New York.

The “HP Part”, as it is known, is where Tenants can bring actions for the imposition and collection of civil penalties for the violation of such laws. It can also issue injunctions and restraining orders or other orders for the enforcement of housing standards under such laws. The housing judges who sit in the HP part have the power to punish for contempt. 

This Part is set up to work with Tenants on a pro se basis. If you are representing a Tenant and would like to keep their fees low, the Tenant can likely represent him or herself in this stage of a litigation. 

The general way in which the HP Part works is as follows. The Tenant files and HP proceeding with the assistance of a Pro Se Clerk at the courthouse. The papers are usually served by mail. When the proceeding appears on the Court’s calendar the Landlord (often represented by counsel), the Tenant (often pro se) and an attorney for HPD enter into a stipulation whereby the Tenant will provide access by a certain date for repairs and the Landlord will correct violations by a certain date. The matter appears again on the Court’s calendar to monitor compliance. If Tenant provides access and the Landlord fails to make the repairs on time, the Landlord is subject to fines. The fines go to the City, not to the Tenant.

3. Tenant Can Withhold Rent and Do An HP Proceeding

A Tenant can simultaneously take both approaches described above. You can withhold rent and do battle in a non-payment proceeding and do an HP Proceeding. The nonpayment proceeding gets you the abatement, while the HP proceeding gets you the repairs. Here is a chart explaining the difference between the two approaches.



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