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- Apartment has suffered significant water damage / leaking from a second-floor balcony above a bedroom (all same unit)
- Landlord's effort to remedy the damage have not been sufficient so far
- Apartment arguably uninhabitable / condition worsening
What are the Tenant's rights in this situation? Does one cease payment of rent?
Any advice greatly appreciated.
Despite the problems with the apartment, withholding rent is ALWAYS a breach of contract and very rarely looked favorably upon if and when the dispute eventually gets to court.
See http://tenant.net/Rights/CTRC/ctrcf002.html and http://www.nycbar.org/pdf/report/tenantsguide.pdf
notify that you are putting money into escrow while the situation is not resolved. find a new place to live, send a letter stating the landlord is in violation of Warranty of Inhabitability. move out....
good luck to him in trying to get the money from you in court if you take pictures and have all your docs in a row.
I believe you need to give the landlord a reasonable opportunity to fix the program...so a key fact missing from your description is how long this problem has been going on for
Don't cease rent payment.
Take photos and video of the water leak. Video is important to show a flowing leak. Keep all of your e-mail communications with the landlord handy.
If landlord refuses to repair, or fails to fix properly call 311 they will connect you to the HPD.
File a complaint. They will send your landlord a notice that you filed.
The landlord may send repairmen again to fix it.
The HPD will send an inspector to see the extent of the damage, if you have flowing water leak, paint peeling/ bubbling. The HPD will officially declare the apt to be uninhabitable if it meets the immediate hazard standard. If that happens they get an order of relocation from the HPD Commissioner and order the landlord to relocate you until the work and all repairs are complete.
So pack your bags. You also need to be home when the inspector arrives. He will probably make a visit while you are at work the first time. only after you have missed them and come home to find the green card on your apt door, there's no appointment made. Just call the phone number and set up an appt. They will send another inspector.
If things don't get repaired properly they resend another inspector to see what happened. If the landlord continues to refuse proper repair the HPD will send contractors they have hired to fix it and send the repair bill to the landlord.
If you need to go to court, there is info on the bottom of the violation notice that will was mailed to you after the first 311 call to report. You can get a lawyer to rep you if you can't afford one.
"Despite the problems with the apartment, withholding rent is ALWAYS a breach of contract and very rarely looked favorably upon if and when the dispute eventually gets to court."
Matt, if you don't actually know anything about a subject, it would be best if you didn't just make stuff up*. As the first link by NWT makes clear, withholding rent is an absolutely legal recourse when the implied warranty of habitability is not being fulfilled. More generally, refusing to pay when the other party is not living up to their side of the contract does not "ALWAYS" mean that a breach of contract is occurring.
jordyn, there's a difference between simply withholding rent and setting up an escrow.
There's no requirement to set up escrow if the apartment isn't habitable. In that scenario, the landlord isn't providing you with a reasonable place to live so you don't owe them money.
THe point is that is for the judge to decide, not you, regardless of what a slam dunk case you may or may not have.
Until that moment you are in breach of contract as well.
Why give any points to landlord on the scorecard?
Putting the rent in escrow is STRONGLY suggested.
(And I generally disagree with MAtt on a zillion things)
The EXACT language from NWT's link
o If no corrective actions are taken, rents may be withheld
collectively or individually. It is very important, however,
to get expert advice on rent withholding procedures from a
community organization, legal services or legal aid
provider, or a tenant attorney.
The PROCEDURE is to put it in ESCROW.
Disclosure: I am not a lawyer but I've seen one on TV.
I'm not saying that it's not a good idea to put rent in escrow, I'm saying that Matt's statement that it's always a breach of contract to withhold rent is absurd.
So, your apartment is flooding, but you have to go to the bank, ask them about opening up an escrow account, create a escrow agreement among you, the bank, and the landlord, ... what are the other steps are required under this simple "PROCEDURE is to put it in ESCROW" to make your landlord and theoretically a judge happy while your apartment remains uninhabitable and not quickly repaired?
Anyone have any ideas?
Escrow ... give me a break.
Your point is the procedure sucks. I agree 1000%.
I'll sign anyone's petition for legal system and tort reform.
Unfortunately there is what it ought to be and what it is......
HPD. Then you have an official N.Y.C. housing agency to inspect and official documents detailing notice of violation, description and important things that they will do for you, the renter.
You can call today. Operators are at 311 waiting to assist you.
Because you will have to prove that "no corrective actions" have been taken by the landlord.
My point is it is unreasonable for a person who can't inhabit his or her apartment to have to further inconvenience himself for the benefit of the landlord.
My second point is that it's easy to shout "escrow" or "lawsuit" but very difficult to actually practice.
Agree to the first point and second the second. That's why the HPD is best to document the damage.
Roger and out.
The grey zone vip lounge roofdeck is ready to rock for the weekend.
Jordyn...your statement that the tenant does not owe rent when the apartment is uninhabitable is not correct. The warrant of habitability states:
The court or DHCR may grant a rent reduction if it finds that the landlord violated the warranty of habitability. The reduction is computed by subtracting from the actual rent the estimated value of the apartment without the essential services. For a tenant to receive a reduction, the landlord must have actual or constructive notice of the existence of the defective condition.
You will only be entitled to the difference between the market value of the apt with and without the problem. Here, from the description of the problem, you have a leak and your walls are wet....You may get an abatement, but it won't be much and probably not enough to go through the process.
There are leaks and there are flowing leaks. The HPD will inspect and classify.
There will be official HPD documentation of the severity of the conditions.
If the OP apt is relocated he will go to housing court and they provide an attorney if he can't afford one.
If he does not need to be relocated his LL. will be forced to repair -- or the HPD will repair and bill the LL. The Op can still go to housing court even if he is not relocated, where the judge will see the HPD reports.
The judge will also issue orders about the rent.
if the OP is relocated. (the apartment isn't going anywhere).
"My point is it is unreasonable for a person who can't inhabit his or her apartment to have to further inconvenience himself for the benefit of the landlord."
And MY point is that in a city of 8.6 million people, there are 8.6 million different definitions of "uninhabitable".
You've agreed to pay rent. You've now stopped paying. Breach of contract.
The landlord MAY not be living up to his end of the deal, with this water issue, which remains to be seen.
But in the eyes of the judge, until it's proven that the landlord is at fault here, YOU are clearly the one in the wrong.
please, get a lawyer...
and maybe you can't afford a lawyer.
HPD>HOUSING COURT>INFORM THEM THAT YOU NEED A LAWYER BECAUSE YOU CAN"T AFFORD TO PAY FOR REPRESENTATION.
> But in the eyes of the judge, until it's proven that the landlord is at fault here, YOU are clearly the one in the wrong.
Breach of contract sounds scary, almost as scary as going in front of a judge. So what happens in this situation in front of a judge? Judge gets evidence of the problem, the duration of the problem, the fact of it being fixed. Then determines if any deduction would reasonably be warranted. Then orders the back rent to be paid less any deduction the judge determines.
Possibly the judge sends you to beach of contract prison in Pennsylvania where NYCMatt is from for the duration of your remaining lease.
Is that beach open off-season?
"You've agreed to pay rent. You've now stopped paying. Breach of contract."
Landlord agreed to provide a habitable apartment and fix things, and isn't. Breach of contract. I guess your theory is that regardless of what your counterparty in a contract does, you're obliged to hold up your end? What if the building was destroyed? Would the tenant have to keep paying rent until a judge declared otherwise?
Nintz--I have no idea why you think what you posted contradicts the right of the tenant to withhold rent. NWT provided a pretty clear citation that withholding rent was legal; if you're going to assert that it's not, finding some clearly language to the contrary and an actual citation to the law (or case law) would make your case a lot more convincing.
NYCMatt is already calling in the union's inflatable rats to protest outside of the building where this tenant lives because of the "breach of contract."
Worse though than a "breach of contract" is if there is no contract. That equals picket line, shouting at prospective tenants who are ok with out a contract, and refusing to tip.
"Landlord agreed to provide a habitable apartment and fix things, and isn't. Breach of contract. I guess your theory is that regardless of what your counterparty in a contract does, you're obliged to hold up your end?"
What I'm saying is that in the eyes of a judge, when the case is brought before him, all he knows for sure at that point is that the TENANT is in breach of contract. It remains to be seen whether the landlord is, as it has yet to be proven that the unit is "uninhabitable".
At best, at the end of the day, in the eyes of the judge, you're BOTH wrong.
>What I'm saying is that in the eyes of a judge, when the case is brought before him, all he knows for sure
Does the tenant not have a working camera, report from HPD, copies of insurance claims for damaged items, or copies of bills for a temporary residence?
>the TENANT is in breach of contract.
Brilliant, if the tenant isn't even able to live in the apartment, somehow he's in breach of contract.
>At best, at the end of the day, in the eyes of the judge, you're BOTH wrong.
Really? And at worst? The water damage was imagined and the tenant has to pay backrent and modest interest? So horrible
What I'm saying is that you have no idea how many cases come before judges in this city pitting landlords against hysterical tenants who are withholding rent because the apartment is -- in their words -- "uninhabitable".
Some of their reasons:
-- The dishwasher isn't working
-- The electric window blinds aren't working
-- The water pressure in the guest bath shower isn't "strong" enough
-- The elevator is out of service (but the SERVICE elevator is working just fine)
-- Construction noise from the building next door is ruining their "quality of life"
These are actual excuses that tenants have used to withhold rent -- and actually brought before a court. So you understand why I say that judges already have a jaundiced eye before the arguments even begin ...
So Matt your position is that NYC judges are anti-tenant?
No. Most of them are just anti-bullshit.
Because of all the cases involving broken electric window blinds that they see?