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Web address: http://www.nylj.com
VOLUME 235—NO. 85
WEDNESDAY, MAY 3, 2006
COOPERATIVES
AND
CONDOMINIUMS
BY RICHARD SIEGLER AND EVA TALEL
The Warranty of Habitability, 2006
T
hirty-one years after its codification as
New York Real Property Law (RPL)
§235-b, the warranty of habitability
remains an important protection for
residential tenants.1
Under this statute, every residential lease
contains an implied, nonwaivable warranty that
the premises are fit for human habitation and
will provide the essential functions of a residence, and that occupants will not be subjected
to conditions that are dangerous, hazardous or
detrimental to life, health or safety.
Courts generally enforce this statute by
awarding rent abatements for unfit conditions
to rental tenants, including co-op apartment
owners whose proprietary lease creates the
requisite landlord-tenant relationship.2 The
extent of the abatement is determined by
weighing the severity of the breach, its duration
and the effectiveness of the landlord’s efforts
to cure the condition.3 The warranty does not
permit a tenant to recover for damage to
personal property or for personal injury resulting
from a breach.4 And the warranty is inapplicable
to condominium units, where no landlordtenant relationship exists.5
In previous articles dealing with the
warranty of habitability, we examined various
conditions and discussed whether they constitute a breach, including water damage,6 inoperable elevators in a luxury building,7 and most
recently, noise.8
This article picks up where the others left off,
examining the warranty in light of new case
law and legal trends affecting rental and
co-op apartments.
Mold and Dust
Mold and dust conditions may result in a
violation of the warranty of habitability.9
Recent case law suggests that courts will look
to the effect of the mold condition on the
occupant, not the levels of mold in the apartment, in determining whether there is a breach.
In 360 West 51st Street v. Cornell,10 the court
Richard Siegler is a partner in the firm of
Stroock & Stroock & Lavan and is an adjunct
professor at New York Law School. Eva Talel is
also a partner in Stroock & Stroock & Lavan,
specializing in litigation involving co-ops and
condominiums. David Koshers, a New York
Law School student, assisted in the preparation of this
article. Disclosure: Stroock & Stroock & Lavan is
counsel to the Real Estate Board of New York.
Richard Siegler
Eva Talel
summary dismissal of the Beck complaint, holding that there was no basis for the tenant’s claim
that the landlord had an “ongoing duty to
monitor the plaintiff ’s apartment for the
possible development of environmental hazards.”14 Water damage and brown stains on the
wall did not amount to constructive notice of a
mold condition. Because the tenant moved out
of the apartment before the landlord had a
reasonable opportunity to remediate the mold
condition, the tenant’s claim was dismissed.
Safety and Security Issues
awarded a tenant allegedly sickened by minimal
mold growth a full rent abatement. The tenant
claimed that after the landlord removed debris
and old furniture from basement storage areas,
she began to suffer from rashes, fatigue,
headaches, shortness of breath and was forced to
visit hospital emergency rooms several times.
Faced with conflicting expert testimony on
the adverse health effect of the small amount of
mold found present in the apartment, the court
based its decision on the tenant’s testimony “of
a happy life, excellent health, a lot of physical
activity in the gym and on her bicycle…a
beautiful apartment tastefully decorated…and
then poof, a cloud of dust and spores arose from
the basement and ruined it all.”11 The court held
that, despite the minimal amount of mold, the
effect on the tenant was severe and she was
therefore constructively evicted from the
premises, and awarded her a 100 percent rent
abatement for a period of 6.2 months.
In Beck v. J.J.A. Holding Corp.,12 the
Appellate Division, First Department focused
on the requirement of notice, and held
that actual or constructive knowledge by the
landlord of the mold condition itself was
required before liability could be imposed.
Lower-court decisions had previously suggested
that a landlord could incur liability even if it
had only constructive notice of conditions in
an apartment which might result in a mold
condition, such as water leaks or brown spots on
the walls.13
In Beck, the tenant claimed that as a result
of water damage, mold contaminated her
apartment and she became chronically ill. She
argued that because mold is a foreseeable
consequence of water damage, the landlord,
who had notice of the water damage, breached
the duty to maintain the apartment in a safe and
habitable condition.
A unanimous First Department affirmed
Case law makes clear that residential
landlords have a duty to provide tenants with a
safe premises and the failure to do so, after
notice of a hazard, frustrates the tenant’s ability
to make reasonable use of the premises and
breaches the warranty of habitability.15
In Auburn Leasing Corp. v. Burgos,16 the
landlord rented an apartment to tenants who
began to deal drugs from the apartment on a
24-hour basis. Repeated complaints from
occupants of the adjacent apartment were
initially ignored, but the landlord eventually
commenced a summary proceeding seeking to
evict the drug-dealing tenants, by which time
the adjacent tenants had moved out. The landlord sought to recover rent for the balance of
the adjacent tenants’ lease term and the court
rejected the claim, holding that the landlord
breached the warranty by failing, after notice,
to protect the tenants, and the tenants had
therefore been constructively evicted and
owed no rent. The landlord’s commencement
of a summary proceeding was “too little and
too late.”17
Landlords are also on constructive notice
that a defective door or lock may lead to an
assault or theft.18 When landlords provide locks
and doors, they assume a duty to maintain
them in working condition. When a landlord is
on notice that locks or doors have become
inoperable and makes no repairs, the landlord
is deemed to have breached the warranty
of habitability.19
However, where a tenant is assaulted or
burglarized but cannot demonstrate that the
landlord’s security measures are inadequate,
there is no breach of the warranty. In Estate of
Hortense Klein v. Beekman Tenants Corp.,20 a
tenant was assaulted and her co-op apartment
burglarized when an assailant gained entry to
her apartment. The court found that the tenant
failed to show that the co-op knew or should
have known of the probability of conduct that
NEW YORK LAW JOURNAL
would likely endanger her safety, and there was
no evidence of a history of prior criminal
activity in the building. Relying on the Court
of Appeals’ decision in James v. Jamie Towers
Housing Co.—holding that “by providing
locking doors, an intercom service and 24-hour
security, [landlord] discharged its common-law
duty to take minimal security precautions
against reasonable foreseeable criminal
acts”21—the court summarily dismissed the
tenant’s claim.
In Stuyvesant Town-Peter Cooper Village
Tenants v. Metropolitan Life Insurance and
Annuity Co.,22 the landlord sought to install a
security system to update the 50-year-old existing system; metal keys would be replaced by
“cardkeys” sensed by a reading mechanism at
the lobby entrances. The tenants’ association
objected, claiming, among other things, a
breach of the warranty of habitability because
the new security plan would create a “hardship”
—periodic renewal of the cards and taking
identification pictures would allegedly create a
burden on residents and guests and prevent
family members from visiting and checking on
tenants with potential medical emergencies.
The court rejected the tenants’ challenge,
holding that the inconveniences alleged did not
deprive the tenants of the essential functions
of a residence.
Rodents and Bedbugs
Where a residence is infested with insects
or rodents, creating a threat to the health and
safety of the occupants or intolerable living
conditions, courts have found a breach of the
warranty of habitability.23
In Elijah Jermaine, LLC v. Boyd,24 the court
found a breach of warranty based upon
unremedied rodent infestation and other defective conditions in an apartment. The landlord
had notice of the conditions and took no corrective action. The tenant was awarded a 15
percent rent abatement for a period of seven
months. Building management must take
corrective steps commensurate with the gravity
of the infestation. Where the landlord’s steps
were ineffectual to remedy the infestation,
the tenant was awarded a 100 percent rent
abatement for three months.25
In addition to common rodents and vermin,
bedbugs have resurfaced as a problem in New
York City. In Ludlow Properties LLC v. Young,26
the court found that the presence of such bugs
notwithstanding the landlord’s extermination
efforts, created an intolerable condition and
awarded the rental tenant a 45 percent rent
abatement for a period of seven months.
Similarly, in Jefferson House Associates, LLC v.
Boyle,27 the court awarded the rental tenant a 50
percent rent abatement for six months, and a 20
percent abatement thereafter until the problem
was remedied.
Lead-Based Paint
Lead-based paint was frequently used to paint
apartment interiors in buildings erected before
1978. Courts have found a breach of the
warranty of habitability where the landlord is on
notice of the presence of lead-based paint in a
dwelling, such that it creates a dangerous or
hazardous condition for its occupants.28
In 2004, The New York City Council
WEDNESDAY, MAY 3, 2006
enacted the Childhood Lead Poisoning
Prevention Act (the act).29 This requires
landlords to abate lead paint hazards in
apartments and common areas of buildings
where children under the age of seven reside.
The act also puts the landlord on constructive
notice of any lead paint hazard condition within an apartment that is occupied by a child
under the age of seven. The act permits responsibility for compliance to be allocated by
agreement between a co-op apartment owner
and the co-op corporation. Preparation of such
agreements and compliance by a co-op with
the act warrants consultation with a knowledgeable source.30
Other Issues
In Port Chester Housing Authority v. Mobley,31
a quadriplegic rental tenant in a handicapped
apartment sued the landlord for breach of the
warranty of habitability for failure to provide a
roll-in shower. The Appellate Term, First
Department, found no breach, holding that
the warranty does not make the landlord a
guarantor of every tenant amenity, but only
protects against conditions which materially
and adversely affect the health and safety of a
tenant, or deficiencies that deprive a tenant of
the essential functions of a residence.
In Franken Builders Inc. v. Ciccone,32 a landlord sought to terminate a lease for the rental
tenant’s failure to comply with a lease requirement that 80 percent of the apartment’s floor
area be covered with carpeting. The tenant
claimed that she had an allergic/asthmatic
condition and having carpeting in her residence
would create a dangerous or hazardous
condition, thereby breaching the warranty of
habitability.
The court rejected the tenant’s claim,
holding that landlord’s carpet requirement did
not create a harmful condition or deprive the
tenant of the essential functions of a residence.
Instead, the rule served a legitimate and reasonable noise control purpose. The landlord was
awarded possession of the apartment.
Conclusion
Recent case law demonstrates the willingness
of New York courts to apply the statutory
warranty of habitability to cover new and
evolving conditions, such as mold and leadbased paint hazards. Co-op boards and managing agents should therefore be vigilant to ensure
that unsafe or dangerous living conditions are
promptly remediated. To protect the co-op
corporation from unfounded breach of warranty
claims, management should maintain records
of complaints received, remediation efforts
made, the results achieved, and the difficulty (if
any) in obtaining access to the apartment
in question.
••••••••••••••
•••••••••••••••••
1. N.Y. Real Property Law §235-b (McKinney Supp. 2006).
2. Courts are mindful that, because of the unique nature of
co-ops, the warranty of habitability cannot be applied to coops in precisely the same way as it is applied to landlords of
rental property. A co-op board is both a landlord and representative of the shareholders who are occupants of the co-op
property, and must balance individual and collective interests.
Therefore, under the business judgment rule, when faced with
a claim for breach of the warranty arising out of a board
action, courts should defer to the decisions of co-op boards
where the challenged action is taken in good faith, within the
board’s authority and in furtherance of the co-op’s interests, as
a whole. See, e.g., 29-45 Tenants Corp. v. Rowe, NYLJ, Jan. 8,
1992, at 23, col. 4 (Civ. Ct. N.Y. Co.) (tenant deprived of terrace use to accommodate building repairs cannot recover for
breach of the warranty); 315-321 Eastern Parkway
Development Fund Corp. v. Wint-Howell, 9 Misc3d 644 (Civ.
Ct. Kings Co. 2005) (tenant deprived of use of certain
kitchen and bathroom facilities because of building-wide renovation project cannot recover for breach of the warranty).
3. Park West Management v. Mitchell, 47 N.Y. 2d 316
(1979), cert. denied, 444 U.S. 992 (1979).
4. 40 Eastco v. Fischman, 155 A.D.2d 231 (1st Dept. 1989);
Elkman v. Southgate Owners Corp., 233 A.D.2d 104 (1st Dept.
1996).
5. Frisch v. Bellmarc Management, Inc., 190 A.D.2d 383
(1st Dept. 1993), confirmed in Linden v. Lloyds Planning
Service, Inc., 299 A.D.2d 217 (1st Dept. 2002).
6. See 750 Kappock Apartments Corp. v. Daly, NYLJ, April
9, 1997, at 29, col.1 (Civ. Ct. Bronx Co. 1997). See also
Richard Siegler, “An Update of the Warranty of Habitability,”
NYLJ, July 1, 1998, at 3, col.1.
7. Richard Siegler and Eva Talel, “Another Look at the
Warranty of Habitability,” NYLJ, March 3, 2004, at 3, col. 1,
discussing Solow v. Wellner, 86 N.Y.2d 582 (1995).
8.Richard Siegler and Eva Talel, “Noise and the Warranty
of Habitability,” NYLJ, March 1, 2006, at 3, col.1.
9. 106 East 19th Associates v. Berg-Munch, NYLJ, July 3,
2001 at 21, col. 5 (App.Term 1st Dept. 2001).
10. NYLJ, Sept. 6, 2005, at 18, col.1 (Civ. Ct. N.Y. Co.
2005).
11. Id.
12. 12 A.D.3d 238 (1st Dept. 2004).
13. See, e.g., Litwack v. Plaza Investors, NYLJ, Dec. 1, 2004,
at 23, col.1 (Sup. Ct. N.Y. Co. 2004).
14. Beck, 12 A.D.3d at 240. For a comprehensive discussion of mold remediation and legal liability, see Richard
Siegler and Eva Talel, “Dealing with Mold: ‘Beck,’ Health
Hazards, Risk Management”, NYLJ, July 6, 2005, at 3, col. 1.
15. 610 W. 142nd Street Owners Corp. v. Braxton, 137
Misc.2d 567, 568 (Civ. Ct. N.Y. Co. 1987), modified on other
grounds, 140 Misc.2d 826 (App. Term 1st Dept. 1988).
16. 160 Misc.2d 374 (Civ. Ct. Queens Co. 1994).
17. Id. at 375. See also, U.S. Brownsville II, HDFC v.
Nelson, 2004 NY Slip Op 50466U (Civ. Ct. Kings Co. 2004).
18. 610 W. 142nd Street Owners, 137 Misc.2d 567.
19. Brownstein v. Edison, 103 Misc.2d 316 (Sup. Ct. Kings
Co. 1980); Sherman v. Concourse Realty, 47 A.D.2d 134 (2nd
Dept. 1975). See also N.Y. Multiple Dwelling Law §50-a[3]
(McKinney 2001).
20. Estate of Klein v. Beekman Tenants Corporation,
No.118720/02 (Sup. Ct. N.Y. Co. Nov. 22, 2005). While the
tenant’s claim in this case was based on the co-op’s alleged
negligence, the court’s analysis, and dismissal of the tenant’s
claims, would have been the same under a breach of warranty
theory. See, e.g., Phillips v. Czajka, NYLJ, Nov. 25, 2005, at
19, col. 1 (Civ. Ct. Kings Co. 2005).
21. 99 N.Y.2d 639 (2003).
22. NYLJ, July 19, 2004, at 19, col. 1 (Sup. Ct. N.Y. Co.
2004).
23. Kenmart Realty v. Alhalabi, NYLJ, Dec. 19, 1994 at 32,
col.1 (City Ct. of Yonkers, Westchester Co.) (persistent rat
infestation warranted a 100 percent rent abatement).
Northwood Village v. Curet, NYLJ, Nov. 27, 1998 at 1, col.1
(2nd Jud. Dept. Suffolk Co.) (100 percent rent abatement for
landlord’s failure, inter alia, to cure vermin and rodent infestation).
24. 2004 NY Slip Op 51322U (App. Term 1st Dept. 2004).
25. Kenmart Realty, NYLJ, Dec. 19, 1994 at 32.
26. 4 Misc. 3d 515 (Civ. Ct. N.Y. Co. 2004).
27. 2004 N.Y. Slip Op. 50225 (U).
28. Edgemont Corporation v. Audet, 170 Misc.2d 1040
(App.Term 2nd Dept. 1996) (extremely elevated levels of
lead-laden dust in a rental apartment constituted a threat to
the health of tenant’s daughter and rendered apartment unusable); Chase v. Pistolese, 190 Misc.2d 477 (City Ct. of
Watertown, Jefferson Co. 2002) (landlord breached warranty
of habitability by renting apartment containing lead-based
paint to tenant’s family which included one young and one
unborn child, with knowledge that paint would be exposed by
proposed remodeling work).
29. NYC Admin. Code §27-2056, et seq. (2005 Supp.)
30. See, e.g. Real Estate Finance Journal, Summer 2005 at
86, “New York City Childhood Lead Poisoning Prevention
Act,” Robert G. Koen Interview with Eva Talel.
31. 2004 N.Y. Slip. Op. 24416.
32. NYLJ, Feb. 3, 2004, at 20, col. 1 (City Ct. of New
Rochelle, Westchester Co. 2004).
This article is reprinted with permission from the May
3, 2006 edition of the NEW YORK LAW JOURNAL.
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