A Guide to NYC Tenants’ Rights Post Hurricane Sandy

December 21, 2012 at 4:54 pm Real Estate Law

By David Kaminsky

As a result of Hurricane Sandy, many apartment buildings in New York City are now uninhabitable due to flooding, power outages, and physical damage. Many tenants have been displaced from their residences and forced to seek shelter elsewhere until their residences became habitable again. These tenants, some of who still remain homeless, are concerned about whether or not they will have to pay rent for the duration of their displacement. Although buildings and landlords generally operate in their own unique ways, it’s important for tenants in New York City to know their rights. This article offers a guide to the measures that tenants can take to prevent themselves from being forced into paying rent, and to resume occupancy of their apartments as soon as possible.

First, tenants should always go back and reread their leases. Hurricane Sandy was not the first storm to have struck the city, and there may be clauses in the lease designed to deal with cases of uninhabitability and power failure. Also, Section 235-b of the Real Property Law of New York (RPL) – the Warranty of Habitability – holds that tenants have the right to safe and healthy living environments. It could be argued that a lack of power, heat, and water violates this right, thus constituting a breach of contract and potentially qualifying tenants for some degree of compensation or rent abatement.

Additionally, Section 227 of the RPL – titled When Tenant May Surrender Premises – maintains that, in the case of severe physical damage to their premises as a result of natural elements, tenants may be exempt from paying rent for the time of their displacement. If the reason for the uninhabitability of the premises is not due to physical damage, however, and is due to a power outage for example, landlords will likely claim unaccountability under the “Force Majeure” clause. This clause specifically covers the lack of provided service as a result of natural disasters, and generally excuses the failure of landlords to deliver heat or power if the failure is a result of natural forces and not due to a lack of care or negligence. If landlords fail to make their premises habitable promptly as a result of negligence, however, tenants can file complaints through the Division of Housing and Community Renewal (DHCR) as well as Housing Court.

Due to the ambiguity of the language of law, even very similar cases can result in different outcomes. In order to receive some sort of rent abatement, tenants will need to argue that their premises are uninhabitable; but what does it mean for an apartment to be uninhabitable? The best chance that tenants have to prove that their premises are uninhabitable and to receive rent abatement is by carefully documenting in writing and with pictures all of their complaints to their landlords regarding the conditions of their premises. Without documentation, tenants will most assuredly have trouble presenting a strong case in court.

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