Legal Question in Landlord & Tenant Law in New York

Re: No Heat

Depending upon the specific circmstances, it can be legal for a tenant to withhold rent when the landlord does not make the necessary repairs which are his or her legal duty according to the warranty of habitability which New York state law imposes on every landlord. However, there are risks in doing so: the landlord may take you to court and if you do not appear or if you lose despite your legal defense that landlord breached the warranty of habitibality by not repairing the furnace, then you could face eviction. You may therefore want to save the rent money that you withhold so that it is available in case you are sued and lose and the court demands that you pay that back rent in order to avoid eviction.

Note that this rent withholding right is judge-made law as published in New York State court decisions; the tenant's right to withhold rent whne the landlord does not make repairs is not spelled out in New York state statutes.

If you do withhold rent, it may be a good idea to send your landlord a letter that you will be withholding rent due to the landlords failure to fix the furnace. Make a copy of this letter for yourself in the event that this situation results in court proceedings. This letter will serve as some evidence that your landlord was on notice about the problem with the furnace and that the landlord had the opportunity to repair the furnace before you withheld the rent.

Note that if you do withhold the rent, the landlord could respond by suing you and taking you to court for the unpaid rent. You would then have to appear in court (and take off from work) and risk eviction if you lose despite your legal defense that landlord breached the warranty of habitability by not repairing the furnace, or if do not appear in court to defend yourself.

The landlord might also respond by promising you to repair the furnace by a specific date if you resume rent payment and if so get any such promise in writing from the landlord. Moreover, try to negotiate a rent reduction for the time span from the date of your first notification or complaint to the landlord about the furnace through the date that the landlord actually repairs the furnace.

Note also that a tenant has other options than rent withholding when a landlord will not make neccesary repairs. These options include:

Telephoning local building or health inspectors. Or;

You and other tenants could join together to pay for repair of the furnace and then deduct the cost of such repairs from your rent payments.

Or;

You could continue to pay rent but sue the landlord for the excess rent you are in paying over what the rent should be in view of the lack of heating.