With regard to the first question, the current state of the law for both regulated and unregulated apartments holds the landlord liable for continuing to maintain essential services. The landlord must ensure that the premises are habitable, and that there are no conditions detrimental to the tenant's health or safety. This is commonly known as the implied "warranty of habitability" that is contained in every residential apartment tenancy in N.Y. When the services are diminished the tenant may be entitled to an abatement of rent for the period during which the services were diminished. The fact that the landlord himself is "not at fault" is not necessarily a defense to this implied warranty of habitability. The amount of rent to be paid during any portion of Nov. 2012 and forward will depend on the level of the loss of services.
Clearly, if the tenants are "completely unable" to live in the apartment as a result of the hurricane devastation, the answer is simple-the rent would be 100% abated. On the other hand, if the tenants are still able to reside at the premises, but have lost only some services, then different percentage abatements may apply, depending on the level of service loss.
We may find that the N.Y.C. housing courts will begin using as a basis for deciding Hurricane Sandy cases, a past case decided a decade ago, right after 9/11, as well as those cases relating to flood damage due to weather conditions. The post 9/11 case held the landlord liable for the reduction in services, even though he was not responsible for causing the service interruption. The court found that the implied warranty of habitability applied to circumstances out of the landlord's control, including acts of third parties and natural disasters.
As each circumstance is fact specific, N.Y.C. housing courts generally look at the condition, duration, and what the landlord did to remedy the situation. Of course, if access is not granted by the tenant and access is required, the landlord's ability to make any repair is compromised, thereby limiting the amount of any rent reduction to the tenant.
With regard to the second question, the hurricane affected all landlords throughout N.Y.C. with pending litigation, even those unaffected physically by the storm. The courts were at a basic standstill, due to staff unable to get to work and litigants unable to get to court. Clerical work stalled as a result and no defaults were permitted, causing massive adjournments of scheduled cases into Dec. The city further halted all evictions for almost one month, leaving two weeks of permissible evictions before the mandatory holiday moratorium. This hardship was resoundingly lamented by landlords, as the financial burden due to the downturn in rent collection tightened the normal financial strain of heating season.
As the holiday season has passed, the courts and scheduled evictions are back on track. However, landlords must be aware that the civil court has issued a directive requiring a special affidavit for all default applications where the tenant failed to answer in Sandy zip code affected areas. The affidavit requires a statement that either all essential services remained operational or that all essential services were restored after interruption, and the tenant is not deceased or hospitalized. This affidavit must accompany the default judgment and warrant application, otherwise it will be rejected and the case delayed yet another month awaiting the resubmission of the proper paperwork.
Michele Slochowsky Hering is a partner at Slochowsky & Slochowsky LLP - LandlordsNY.com, Brooklyn, N.Y.
Slochowsky & Slochowsky, LLP, Founded in 1950, has been representing Real Property Owners, Managers, and the industry since its inception. The firm specializes in Landlord/Tenant litigation, in both residential and commercial settings, as well as co-ops and condominiums and is one of LandlordsNY.com's Legal Experts. LandlordsNY.com is a virtual and free network exclusively for NY landlords and property managers that provide a host of resources to help them run a successful business all the while allowing members to connect and learn from each other's experiences and knowledge. Members can get quick, FREE answers from legal, financial, and regulatory experts, up to date info on new laws/regulations, find qualified vendors for any product or service, and much more. Membership is free to qualified landlords and property managers. Register at www.landlordsny.com today!