Can Landlords Charge Rent While Buildings Are Uninhabitable?

Curbed University delivers insider tips and non-boring advice on how to buy, sell, or rent a home or apartment. Additional questions welcomed to tips@curbed.com. Up now, Should you refuse to pay rent if your building is uninhabitable?

With many buildings still uninhabitable, one question on a lot of peoples' minds is whether or not landlords will be able to demand rent payments for apartments that can't be lived in. The short answer is: Yes, they can demand rent, although doing so could be seen as an act of war against the tenants, who are already not the happiest of campers. Some buildings are offering rent abatements while apartments are uninhabitable, such as 200 Water Street, which assured residents that "rents will be appropriately adjusted once the building is operational." Others are going a different route. A tipster from 63 Wall Street tells Curbed that management has already reminded tenants to pay their rent in three separate emails. An email from the management of The Ocean (1 West Street), which has no heat, hot water, or electricity and, according to management "smells like oil/gas" has also informed residents that "rent will be expected as normal, but we will be relaxing late fee rules."

The real question is whether or not tenants will have legal grounds for refusing to pay in these cases. Leases differ from case to case, and the first thing that worried tenants should do is read over their own lease. However, in most cases, renters have limited rights under the casualty section of the lease, which protects against "fire or other casualty." Under that section, tenants have the right to break their lease if the problem is not fixed within 30 days—not much of a help in this case (let's hope.) More helpful may be the Warranty of Habitability, set forth in Section 235-b of the Real Property Law of New York and implied in every residential lease. The first section of the Warranty of Habitability, via CoopandCondo (boldage ours):

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, 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...

Considering the number of buildings that remain affected by the storm, it's reasonable to assume that we'll see a wide array of different approaches from landlords, from full rent abatement to partial rent abatement to demands for complete payment to landlords demanding even more than the original rent (okay, probably not the last one.) If rent disputes end up in court, in this particular case, it is somewhat difficult to imagine a judge siding with the landlord insisting on rent payment for a building without electricity, heat, or hot water. It should go without saying, however, that anyone thinking of going on a rent strike should at least talk to a real lawyer first.
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