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Guzov's Good Advice, Real Property

We’ve all experienced it:  the heat or hot water going out , very strong odors or fumes or a large number of uninvited creatures invading our living space, or perhaps a broken pipe that leads to flooding, mold, and a host of other problems.  What do you when your apartment is no longer a place you can live?

Every landlord has a contractual obligation to provide a tenant an apartment that is livable safe, and clean.  In other words, habitable.  This is called the warranty of habitability.  If your landlord is in breach of this obligation, you have a few options.  You can:

  • withhold rent until repairs are made;
  • attempt the repairs yourself and deduct the cost from your rent;
  • sue your landlord for a rent reduction; or
  • seek to recover previous rent payments as damages through litigation.

However, before you decide to spend your rent in other places, be aware that withholding rent does not mean that you never have to pay it.  This approach may result in your landlord suing you for nonpayment of rent, to which you can respond by counter-suing for breach of the warranty of habitability.  You should also be prepared to provide proof that you have saved the back-due rent money, and are ready to pay it to your landlord once repairs are completed.  Attempting the repairs yourself can also be a dicey proposition.  Before you begin, you must give your landlord notice in writing and provide him a reasonable amount of time to complete the repairs himself.  You should also keep all receipts for such repairs.

How do you know if the warranty of habitability applies to you?  The obvious example is if you are renting an apartment.  Perhaps a less obvious case is that in which you are a shareholder in a cooperative building.  The relationship between a co-op board and a shareholder is a landlord-tenant relationship, so the warranty of habitability still applies.  Instead of rent payments, as a shareholder, you would seek a maintenance abatement.  Unfortunately, the same is not true for condominiums.  Courts have routinely held that there is no landlord-tenant relationship between a condo board and a unit owner.

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