Only tenants have certain rights in unlivable unit

After Sandy struck, residents of 88 Greenwich St. in the Financial District originally were told it would be four months before they could go home.

There is a section of property law that declares tenants’ right to live in conditions not dangerous, hazardous or detrimental to their life, health or safety.

Under the “warranty of habitability,” tenants have the right to a livable, safe and sanitary apartment.

Under the warranty — in other words, guarantee — a unit must provide heat or hot water on a regular basis.  Other issues include, leaks, mold, broken plumbing, elevator service in high-rise building and insect infestation.

It is up to the landlord to remediate conditions that make a rental unit unlivable, no matter the cause.  If a landlord fails to act, the warranty of habitability provides tenants with the opportunity to obtain financial relief in one of three ways.

Tenants may sue for rent reduction, continue to pay rent while seeking monetary damages or withhold all rent until a court determines the fair rental value of the property.

But only tenants possess those rights.  Since shareholders in a co-operative are technically tenants, they have the rights.  Should they sublet the apartment, those tenants have the rights as well.

However, courts have held in New York that condo owners cannot assert a warranty of habitability.  An appeals court put it this way:

. . . [U]nit owners. . . cannot withhold payment of common charges and assessments. . . based on defective conditions. . . or based on his disagreement with actions lawfully taken by the board of managers.

According to the court, the business judgment rule applies, Stroock lawyers Richard Siegler and Eva Talel relate in a 2004 New York Law Journal article.  The measure prohibits challenges to board actions free of fraud, self-dealing or other misconduct.

Still, not all is lost: It may be possible to argue successfully that the condominium board is in breach of contract if it egregiously fails to, say, order repairs that would stop water from one unit leaking over time into the apartment below.

Although condo owners are not tenants, those to whom the owners lease out their apartments are tenants and thus are protected under the law.

Note: No Weekly Roundup this week, no Out and About on Monday, regular schedule resumes Tuesday.

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Malcolm Carter
Licensed Associate Real Estate Broker
Senior Vice President
Charles Rutenberg Realty
127 E. 56th Street
New York, NY 10022

M: 347-886-0248
F: 347-438-3201

Malcolm@ServiceYouCanTrust.com
Web site

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