When your landlord breaches your warranty of habitability. Get a rent abatement.

Nothing upsets me more than landlords who do not respect their tenants and their quality of life. If you live in an apartment rental you will want to read this.

The warranty of habitability is an implied warranty, read into the lease as a matter of law. The landlord cannot require any tenant to waive or limit this warranty. It is a warranty that the landlord will maintain the premises in a condition fit for humans to live in, fit for the use the parties reasonably intended, and free of conditions that are dangerous or detrimental to health and safety. Conditions that violate the warranty of habitability can include anything from lack of running water or hear, cracks in the walls, lack of required fire protection equipment, leaking pipes, exposed electrical wiring, vermin and many other things (a list is included below).

When a landlord violates the warranty of habitability, the tenant has remedies in court. The court may find the tenant is entitled to an abatement, or refund, of the rent for the period of the time the violation existed. The tenant can also WITHHOLD RENT until the violation is corrected. If the landlord brings a NONPAYMENT OF RENT proceeding, the tenant can deposit the rent with the court until the matter is decided. If the tenant proves the warranty of habitability was violated, the landlord forfeits the rent, which is then returned to the tenant.

Therefore, the warranty of habitability makes the landlord or owner responsible for keeping your apartment and the building safe and livable at all times. You may have a warranty of habitability defense or counterclaim (for withholding rent) if you have ANY of the conditions listed here (or you had any during the time period the landlord says you owe rent) in your apartment or the public areas of your building.

_____ You can’t live in all or part of the apartment.

_____ No water.

_____Water leaks or floods.

_____ No hot water.

_____ No heat.

_____ Problems with pipes.

_____ Radiator problems (too much heat, broken, exploding, noisy).

_____ Electric (broken outlets or light fixtures, exposed or bad wiring).

_____ Mice/Rats/Vermin

_____ Mold

_____ Kitchen problems (stove/oven/refrigerator/sink broken)

_____ Gas (none or leaking)

_____ Bathroom problems (broken toilet/sink/shower/tub, leaks or block up)

_____ Floor problems (holes, sagging, etc.)

_____ Walls/Ceiling cracks, peeling paint or plaster

_____ Broken tiles on walls or floors.

_____ Peeling paint or plaster.

_____ Lead paint (in most buildings it will be assumed that the paint is lead paint if a child under age 7 lives in the apartment.

_____Window problems (bad fit/leaks/drafty, broken glass, don’t open or close, locks broken, torn screens).

_____ No window guards.

_____ Bad ventilation.

_____ Smoke detector missing or it’s no good.

_____ Carbon monoxide detector missing or it’s no good.

_____ Garbage not collected.

_____ Smells or fumes.

_____ Harassment by landlord or other tenants.

_____ Noise.

_____ Door locks broken.

_____ Broken intercom or doorbell.

_____ Fire or smoke damage.


_____ Crime or illegal activity.

_____ Dirty Hallways (sewage, garbage).

_____ Bad lights (indoor or outdoor).

_____ Dangerous stairs or railings.

_____ Broken elevator.

_____ Mailbox problems (none or no good).

_____ Broken Fire Escape.

_____ Boiler is no good.

_____ Roof is no good.

_____ Any other condition that is dangerous to life, health or safety or makes the apartment or building unlivable.

The warranty of habitability also says the landlord or owner must maintain services and conditions that you were told about when you moved in, but are not required by law; like, if your landlord or owner agreed to provide air condition or a roof-top garden. If the landlord or owner did not provide these services, then you have a warranty of habitability defense and counterclaim.

In order to prove a warranty of habitability defense, your landlord or owner must have had actual or “constructive notice” of the condition that needs repair. If you called or wrote to the landlord or an employee of the landlord to tell them of an unsafe or unlivable problem in your apartment or building, they were placed on actual notice. Or, if the Department of Housing Preservation and Development (DHPD) has put violations on the apartment or building, then the landlord or owner has actual notice of those conditions.

If you did not call or write to the landlord or an employee of the landlord to tell him or her about the condition, “constructive notice” may be found if you can show that the landlord or one of his or her employees should or could have known about the condition, even though you did not give actual notice in writing or by talking about it. For example, you may not have told the landlord or an employee about the condition but he or she should have seen it because the conditions should have been discovered with routine maintenance. Or the problems are so clear, that any person would know about them.


When you go to court you must bring any written records of notice of the conditions, any copies of the letters and if possible, any proof that the landlord or the landlord’s employees got the information from you. Bring temperature logs (records), photographs, chips of peeling paint and plastic, dead mice or rats caught in the apartment of building, all the types of proof that can help your case.

You should bring any witnesses who saw the conditions, like neighbors. If you kept any records that show the dates and times the unsafe or unlivable conditions existed, like poor heat, leaks, times when strange people came into the building when the outside door lock was broken, or when you have experienced broken elevators. You do not need an expert to testify in court to prove a warranty of habitability defense or claim.

If the judge says that you have proved the defense or claim, you may be entitled to an “abatement,” or a reduction of the rent. The amount of the abatement will depend on what the judge says is the percentage of reduction of the value of the apartment when repairs were not made or services were not provided. An abatement is not limited to the months that the landlord or owner is seeking in the nonpayment case (note >> you do NOT need a nonpayment case to file for a rent abatement). You can have an abatement for the entire time the condition existed, up to six years. The Judge may say there were many violations of the warranty of habitability.

Usually you get a judgment against a landlord on a counterclaim for violation of the warranty of habitability and get a refund for the rent you paid and in an amount that is more than the rent you owe the landlord.