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Rent Strikes – The Hows and How Nots

On Behalf of | Apr 1, 2015 | Firm News, Landlord-Tenant Matters |

New York is a very tenant-centric state. Despite the frustration of landlords in Western New York, it makes sense when one remembers that apartments and flats are the main abode of people in New York City, where a majority of the state’s population lives.

There is often great confusion about what a rent strike is.

Real Property Law § 236-b(1) states:

In every written or oral lease or rental agreement for residential premises the landlord or lessor 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. When any such condition has been caused by the misconduct of the tenant or lessee or persons under his direction or control, it shall not constitute a breach of such covenants and warranties.

Whether or not it is written into your lease, and especially if you have no lease and are a month-to-month tenant, your landlord has a non-waivable duty to maintain the apartment in a condition fit for the habitation of human life. The statute is worded broadly, because the definition of “habitable” is broad.

When a landlord fails to maintain the property, he will be deemed to have breached his warranty of habitability, which would entitle his tenants to relief, whether that is an abatement (reduction) of the rent for the time the apartment was unlivable, or otherwise. “The obligation of the tenant to pay rent is dependent upon the landlord’s satisfactory maintenance of the premises in habitable condition.” Park West Management Corp. v. Mitchell, 47 N.Y.2d 316, 418 N.Y.S.2d 310, 391 N.E.2d 1288 (1979).

Items that courts have determined to constitute breaches of the warranty of habitability include infestation of mice and roaches, collapsing ceilings, standing water in a boiler room, exposed electrical wiring (Solow v. Wellner, 150 Misc.2d 642, 569 N.Y.S.2d 882 [N.Y.Co.Civ.Ct. 1992]), broken windows, leaky radiators, inoperable air vents (Pleasant East Associates v. Cabrera, 125 Misc.2d 877, 480 N.Y.S.2d 693 [N.Y.Co.Civ.Ct. 1984]), and, of course, as is most important in Western New York, inoperable heat or hot water (Estate of Romanow v. Heller, 121 Misc.2d 886, 469 N.Y.S.2d 876 [N.Y.Co.Civ.Ct. 1983]).

When landlords fail to maintain the premises for their tenants, there are different options available to the tenants.

First, the tenant can repair the conditions themselves, at their own expense, and deduct the cost from the rent. Second, the tenant can initiate a rent strike.

It’s very important to note that these remedies cannot simply be sprung on one’s landlord. It is very important to make sure that you put your landlord sufficiently on notice of all problems or defects in a timely manner. Verbal notifications, while they may otherwise be acceptable, provide no proof that notice was given, and therefore sending your landlord a letter, by certified mail, would be preferable. It is always preferable to leave a paper trail.

If you are unable to repair the problem yourself and simply abate (deduct) the cost of the repairs from your rent, you can initiate a rent strike until such time as the problems have been addressed.

To begin a rent strike, you will need to inform your landlord that, starting the following month, all rents will be placed in escrow until they repair all of the problems which you have previously informed them of. Go to a local bank or credit union and ask to open an escrow account, and then simply pay your monthly rent into that account instead of to your landlord.

It is very important that you continue to pay your rent into this escrow account. Do not spend it, do not keep it in your own checking account.

Once your landlord remedies the issues which rendered your apartment uninhabitable, it will be your responsibility to pay to your landlord all of the money to which he is due. A rent strike is NOT an abatement, it is essentially holding your the hostage until your demands – a habitable and liveable apartment – are met. Once your landlord relents and fixes the problems, you will have to release your hostage to him.

If you initiate a rent strike, your landlord will have the right to bring an eviction proceeding against you. Once you are in court, you will have an opportunity to tell the judge why you have not paid your rent. The judge will want to know if you put your landlord on notice of the problems (which, if you sent him a certified letter, you will be able to tell the judge you did and show proof). The judge will want to know if you have all the rent owed (which, if you have placed your rent into an escrow account, you can tell the judge you do, and show proof that it is in an escrow account).

With these facts in hand, you will be on the moral high ground, and the judge will ask the landlord why the repairs have not been done. If you do not have these facts in hand, the judge will probably believe you are just trying to avoid paying your rent.

Two things are most important to remember: First, put your landlord on notice of repairs that need to be made, have proof of everything. Make and maintain a paper trail! Second, once your landlord makes the repairs, release the rent to him. You have a right to live in a habitable apartment, but your landlord has the right to be paid for the use of his apartment!