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"We can't use our stove. Should the landlord pay for takeout?"

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Q. I live in a rental building with a restaurant on the ground floor. The restaurant is doing a major renovation and recently the building’s main gas line was shut off and has stayed off ever sense.

None of the renters were told in advance of the shut-off and we were all caught off guard by the inability to use our gas range (thus not being able to cook at home at all).

It’s getting expensive eating out and we feel we should be compensated by the building’s landlord. Do they need to reimburse us for the inconvenience and expense?

A. Yes. Every residential leasehold in New York is protected by what is called the Implied Warranty of Habitability. It need not be written in the lease and the landlord cannot waive your rights to it by including a provision claiming to do so in your lease.

The warranty provides that all residential property leased to a tenant must be 1) fit for human habitation; 2) that the condition of the premises allows for the uses that were reasonably intended by the landlord and the tenant; and 3) that the tenants are not subject to any conditions that are detrimental to their life, health or safety.

Courts in New York have interpreted the law to find that a breach of the warranty has occurred when a tenant has suffered a “sustained deprivation of an essential function.” Given that your range is the sole method of cooking in your apartment, it certainly qualifies as an essential function.  And given that it has been inoperable for numerous days (or longer), your deprivation has been sustained. Thus, your landlord has breached the warranty.

A tenant’s remedy for a breach of the warranty is a rent abatement. However, the amount is not stated at law. It is typically decided by a Housing Court judge who listens to the facts of the case and makes a determination. If your damages are primarily in the form of increased expenses resulting from eating out or ordering in, you can prove your actual damages with receipts documenting them.

Rather than heading straight to Housing Court, negotiate with your landlord directly to abate your rent by an amount equal to the losses you have sustained by the time the gas is turned back on.  If you can't reach a satisfactory agreement, your only remedy would be to take the landlord to Housing Court. If that becomes a necessity, you and your neighbors can engage an attorney to represent you and share the costs.


Mike Akerly is a New York City real estate attorney, landlord, and real estate broker. He is also the publisher of the Greenwich Village blog VillageConfidential.     

Note: The information provided here is for informational purposes only. It should not be construed as legal advice and cannot substitute for the advice of a licensed professional applying their specialized knowledge to the particular circumstances of your case.

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