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www. NYLJ.com
Wednesday, November 2, 2016
Volume 256—NO. 86
Expert Analysis
Cooperatives and Condominiums
Warranty of Habitability in 2016:
Facts Determine the Outcome
U
nder New York law, landlords, including boards of
cooperative housing corporations, have an express
obligation to provide residential tenants with premises that are
fit for human habitation. This statutory warranty of habitability (WOH)
is non-waivable and requires that residential tenants be provided with the
essential functions of a residence and
not be exposed to conditions that are
dangerous, hazardous or detrimental
to their life, health or safety.1 The residence must also conform with uses
reasonably intended by the parties.
Importantly, the WOH does not apply
to condominium apartment owners
because they have no landlord-tenant
relationship (condominium apartment owners own their apartments
in fee simple).2
When the WOH is breached, the remedy is typically a rent abatement. The
measure of damages is the difference
Eva Talel is a partner at Stroock & Stroock & Lavan
and an adjunct professor at New York Law School.
Richard Siegler is of counsel to the firm. Yee Hong,
a law school graduate (awaiting bar admission), and
Margaret Jones and Judy Dhanraj, research
librarians at the firm, assisted in the preparation of this
column. Stroock is counsel to the Real Estate Board of
New York.
By
Eva
Talel
And
Richard
Siegler
between the fair market value of the
residence as warranted and the value
of the residence during the period of
the breach. Courts will also take into
The statutory warranty of habitability is non-waivable and
requires that residential tenants
be provided with the essential
functions of a residence and not
be exposed to conditions that
are dangerous, hazardous or
detrimental to their life, health
or safety.
account the length and magnitude of
the breach, as well as the landlord’s/
co-op board’s efforts to remedy the
alleged breach.3 For co-op apartments,
owners may seek an abatement in their
monthly maintenance charges. Importantly, co-op apartment owners and
tenants must meet certain predicate
requirements in order to successfully
assert a claim for breach of the WOH,
including use of the apartment as a fulltime residence and occupancy of the
apartment at the time of the alleged
breach.4
Our 2014 column5 addressed cases
applying the WOH to secondhand
smoke, noise, mold, lead-based paint
and bedbug conditions. This column
examines cases decided subsequent
to publication of our 2014 column and
analyzes how secondhand smoke,
mold, bedbugs, intended uses of the
residence and tenant/co-op apartment owner actions, impact on the
courts’ application of the WOH.
Secondhand Smoke
In 2016, the Appellate Division,
Second Department, held that, in
the absence of restrictions/limitations on smoking in a condominium
apartment building’s bylaws, secondhand smoke may not constitute a
nuisance.6 This is in sharp contrast
to the Supreme Court, New York
County 2015 decision in Reinhard v.
Connaught Tower,7 where the court
held that, even in the absence of
smoking restrictions in apartments,
the co-op had an obligation to ensure
Wednesday, November 2, 2016
that the apartment at issue was free
of secondhand smoke.
At first blush, Reinhard appears to
impose an absolute duty on landlords
and boards to ensure that their property is completely smoke-free. But
the Reinhard case may be an outlier
because of board inaction—according
to the trial court’s recital of the facts,
the apartment owner had complained
for months about smelling cigarette
smoke in her apartment and the coop board largely ignored her request
for remediation or denied that it had
an obligation to remedy the problem.
The defendants, including the co-op
board, have sought appellate review.
Cases such as the 2015 decision in
555-565 Associates v. Kearsley8 may
be more generally representative of
how courts will treat secondhand
smoke. In Kearsley, the New York City
Civil Court, New York County, held
that a residential rental landlord did
not breach the WOH because, upon
receiving complaints about cigarette
smoke, the landlord immediately
asked the smoking tenant to install
an exhaust fan and air purifier. Such
prompt action relieved the landlord
of liability. Therefore, landlords/coop boards who promptly respond to
complaints of cigarette smoke and
attempt to remedy the problem can
significantly reduce their exposure
to WOH liability.
Mold
Recent cases confirm that the presence of mold alone does not support a
valid negligence or WOH-based claim.
In 2016, in Sylla-Ba v. The Colton Condominium Corp.,9 the Supreme Court,
New York County, held that plaintiffs
residing in a condominium building
were required to show that the presence of mold had specifically and
proximately caused the adverse health
conditions complained of (respiratory
problems, bronchitis, asthma and the
like). The court, citing the Court of
Appeals’ decision in Cornell v. 360 W.
51 St. Realty,10 summarily dismissed
the negligence claim, holding that
plaintiffs needed to establish that the
health conditions they were experiencing were based on concrete scientific
and medical evidence.
Similarly, in a 2015 decision in Raysor v. McClaren,11 the New York City
Civil Court, Kings County, denied
a pro se plaintiff relief because she
failed to show that mold in her residential rental apartment specifically
caused her asthma and memory loss.
The court held that plaintiff needed a
physician to verify that her medical
conditions were caused by mold in
her apartment; otherwise, her medical conditions could be attributed to
other causes. Like the plaintiff in SyllaBa, the plaintiff was required to specifically link her injuries to the mold in
her apartment; the presence of mold
alone did not support an actionable
claim under the WOH.
Bedbugs
The presence of bedbugs in an
apartment may implicate the WOH,
but the extent of any rent abatement
will depend on the impact upon the
tenant’s health, as well as the landlord’s efforts to remedy the bedbug
problem. In 2016, in West 189, LLC v.
Louis-Jeune,12 plaintiff suffered itching,
swelling welts and bites on the face,
allegedly as a result of a bedbug infestation in his residential rental apartment. He contacted the building’s
management, which arranged for an
inspection by an exterminator who
diagnosed the “problem” as bedbugs
and treated the apartment with “foggers” and a “powdered substance.”
But the conditions worsened. Building
management sought to have the same
exterminator return, but the tenant
consulted a different exterminator,
who recommended a different scope
of work—which the landlord rejected.
Thereafter, the tenants vacated the
apartment as “uninhabitable” and the
landlord sued for unpaid rent, broker’s
fees and attorney fees.
The tenants counterclaimed
for, among other things, a rent
abatement under the WOH, which
the court—Supreme Court, New
York County—awarded based on
evidence showing the impact of
the bedbug infestation and how
management failed to carry out
its responsibility to remedy the
problem. Cases such as LouisJeune should serve as a caution
to landlords and boards that merely calling in an exterminator to
address a bedbug problem is not
enough. To carry out their duty
under the WOH, landlords should
retain exterminators experienced
in bedbug remediation and follow
their recommendations.
Intended Use
Beyond assessing whether a property
is fit for human habitation, some courts
have looked at whether a landlord has
Wednesday, November 2, 2016
deprived a tenant of an intended use of
the property. In 2015, in 65E92, LLC v.
Kroell,13 New York City Civil Court, New
York County, the landlord was found to
have breached the WOH because the
fireplace in the townhouse apartment
he rented out did not work. Because
a working fireplace was specifically
included in the lease, its malfunction
deprived the tenant of an intended use
of her apartment. The tenant was awarded a rent abatement for the months during which the fireplace was out of use.
Similarly, in 2016, in Israel Realty v.
Shkolnikov,14 the landlord signed a
lease renewal with a tenant despite
knowing that extensive and legally
mandated work would have to be performed by the building to the terrace
of the apartment. The landlord did not
inform the tenant of these upcoming
repairs and, by reason of the building’s
work, the tenant could not use her terrace. The New York City Civil Court,
New York County, held the landlord to
be in breach of the WOH because the
tenant was deprived of an intended
use of the apartment, and awarded
the tenant an abatement.
Tenant Control and Actions
The WOH only applies to areas that
are under the landlord’s control.15 If
a tenant assumes or obstructs such
control, the WOH does not apply. For
example, in 2016, in Dogwood Residential v. Stable,16 plaintiff agreed
to repair the elevator and roof if the
co-op consented to his purchase of
a penthouse apartment, which the
co-op did. The Supreme Court, New
York County, held that he could not
subsequently compel the co-op to
repair these areas because they were
now under his/the tenant’s control.
In 2014, in A.L. Holdings v. Montanez,17 plaintiff complained about
not having hot water in his rental
apartment but failed to give the
building available times to access his
apartment to review the problem.
The New York City Civil Court, New
York County, held that the tenant was
not entitled to any rent abatement.
Therefore, a tenant who assumes certain responsibilities for repair or who
denies a landlord the opportunity to
remedy the alleged problem is hardpressed to recover under the WOH.
Conclusion
In the cases decided since our
2014 column, the WOH doctrine has
been consistently upheld but the
outcome of WOH-based claims has
been determined by the facts of each
case and the specific actions taken
(or not) by the tenant and landlord.
However, a landlord’s/co-op board’s
general duty under the doctrine has
remained unchanged. Further, so long
as a landlord/board diligently maintains the residential apartment in a
condition fit for human habitation,
promptly responds to complaints,
and makes timely and appropriate
efforts to remedy the problem, that
landlord or board will have substantially fulfilled the obligations imposed
by the WOH, as well as minimized the
likelihood of WOH-based litigation.
shall be deemed to covenant and warrant that
the premises so leased or rented and all areas used in connection therewith in common
with other tenants or residents are fit for human habitation and for the uses reasonably intended by the parties and that the occupants
of such premises shall not be subjected to any
conditions which would be dangerous, hazardous or detrimental to their life, health or
safety.”
2. Suarez v. River-Cross Tenant’s Corp., 107
Misc.2d 135 (App. Term, 1st Dept. 1981).
3. Park West Management v. Mitchell, 47
N.Y.2d 316 (1979).
4. See, e.g., 170 West End Avenue v. Turchinn,
37 Misc.3d 1226 (Civ. Ct. N.Y. Co. 2012), (apartment owner asserted WOH claim based on
leak from another apartment; court held that
because apartment was used primarily as law
office, WOH could not be invoked).
5. See, Siegler and Talel, “Warranty of Habitability in 2014: Seeking to Strike a Balance,”
NYLJ, Sept. 3, 2014, p. 3, col. 1.
6. Feinstein v. Rickman, 136 A.D.3d 863 (2d
Dept. 2016) (the court, citing to Ewen v. Maccherone, 32 Misc.3d 12, 14-15 (App. Term 1st
Dept. 2011) held that adjoining unit owner’s
smoking in the privacy of their own home was
not so unreasonable under the circumstances
presented as to justify the imposition of tort liability for doing so.) See, lower court’s orders
for a complete description of the facts, at: Order, Feinstein v. Rickman, Index No. 1882/13
(Sup. Ct. N.Y. Co., July 23, 2013). Order, Feinstein v. Rickman, Index No. 1882/13 (Sup. Ct.
N.Y. Co., April 3, 2014).
7. 2016 WL 4256704 (Sup. Ct. N.Y. Co. Feb. 1,
2016). See, Siegler and Talel, “Increased Vigilance for Secondhand Smoke” NYLJ, May 14,
2016, p.3, col. 1.
8. 48 Misc.3d 1211(A) (Civ. Ct. N.Y. Co. 2015).
9. 2016 WL 4208449 (Sup. Ct. N.Y. Co. Aug. 9,
2016).
10. 22 NY3d 762 (2014).
11. 47 Misc.3d 1205(A) (Civ. Ct. Kings Co.
2015).
12. 2016 WL 4459502 (Sup. Ct. N.Y. Co. Aug.
23, 2016).
13. 46 Misc.3d 1209(A) (Civ. Ct. N.Y. Co. 2015).
14. 51 Misc.3d 1202(A) (Civ. Ct. N.Y. Co. 2016).
15. Park West Management v. Mitchell, 47
N.Y.2d 316 (1979).
16. 2016 WL 1449421 (Sup. Ct. N.Y. Co. April
11, 2016).
17. 44 Misc.3d 1230(A) (Civ. Ct. N.Y. Co. 2014).
••••••••••••••••
•••••••••••••
1. N.Y. Real Prop. §235-b (McKinney 2006).
The WOH provides, in relevant part: “In every written or oral lease or rental agreement
for residential premises the landlord or l­essor
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