Warranty of Habitability and Constructive Eviction

Questions and Answers for Owners with Buildings Affected By Hurricane Sandy

The information below is intended to provide general guidance and does not constitute legal advice.  You should consult your own attorney before determining how to proceed in your specific circumstances.


Do tenants who remain in their apartments after Hurricane Sandy and who did  not have heat, hot water or other services for a portion of the month have the right to a rent abatement?

The answer depends on the particular facts of each situation. Real Property Law, §235-b, provides a statutory warranty of habitability in every residential lease that the premises must be fit for human habitation.  Even though the loss of heat, hot water or other services arose from an act of nature, the tenant is probably entitled to a rent abatement of some amount for the period of time that they are without services.  The amount of the abatement will depend on the specific services that the owner was unable to provide and the amount of time the tenant is without those services.  While the amount of the abatement can be determined in a Housing Court proceeding, that amount can also be agreed upon between the owner and tenant without going to court.


What if the conditions are so serious that the apartment is uninhabitable?

Where an apartment is uninhabitable, Real Property Law, §227, allows the tenant to surrender the lease because they have been “constructively” evicted. In this situation, the tenant can cancel the remainder of the lease and is relieved of any further obligation to pay rent.  In order to protect both you and the tenant, the tenant should sign a surrender agreement and return the keys to the apartment.


If you have any questions about your particular situation please feel free to contact RSA.  As is always the case with regard to legal questions, you should seek legal advice from your own attorney.

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