Rent Coach

Rent Coach: Do I need to let my landlord in to fix a problem even if I'm moving out?

By Mike Akerly  | January 31, 2014 - 12:43PM

Q. My bedroom ceiling has leaked and plaster has collapsed six times in two years.  My landlord wants me to clear out all my possessions (again) so they can repaint and plaster (again) over the course of three days.  

 My apartment is very tiny, so I would have to move everything into other rooms, leaving very little space to live in.  I don't want to do this, especially since I know they won't repair the actual problem, and the bedroom will leak again and I will have substantial plaster clean up (again).  I've given notice to move out in four months.  Am I legally required to let my landlord in to plaster and paint?

 A. The short answer is “yes.”  Tenants are typically required to provide access to an apartment for repairs and maintenance.  Standard form leases permit a landlord or their agents to enter the apartment during reasonable hours to do repair work that they deem desirable or necessary.  Note that these provisions don’t require that the tenant agree with their landlord’s determination.  However, there is more to your situation then the basic question of whether or not you must let them in.

The Warranty of Habitability is implied in every residential lease in New York, meaning that it doesn't have to be explicitly enumerated in the contract and it cannot be waived.  It essentially states that every landlord guarantees that 1) the premises they rent out are fit for human habitation; 2) the condition is consistent with the use of the space intended by the parties when they signed the lease; and 3) that tenants are not subjected to any conditions that are detrimental to their life, health or safety.  A tenant’s obligation to pay rent is conditioned upon their landlord’s fulfillment of their obligations pursuant to the warranty. 

The state Division of Housing and Community Renewal can order a reduction in the rent owed by a tenant if they agree that the tenant has suffered a "sustained deprivation of essential functions."  A water leak that causes ceiling damage that the landlord takes steps to fix would not likely qualify as a breach of the warranty.  However, there is certainly an argument that it rises to that level since it has occurred six times at the same location.

Alternatively, you may have an argument based on a second theory called Constructive Eviction.  This occurs when a landlord’s act or failure to act substantially interferes with the tenant’s ability to use the leased premises.  It could be argued that losing access to the bedroom for the sixth time might rise to this level; however, there is a catch.  The remedy for constructive eviction is a release of your obligation to continue to pay rent. 

In order to qualify, you would generally need to move out and then claim this theory as a defense if the landlord brings a claim against you. That’s probably not something that’s very appealing to you as there is definite risk involved and might result in you ending up in court. 

Your best bet is probably to work with your landlord to reach an agreement on a rent reduction.  At the very least, try to insist that they provide the labor at their expense to pack up your bedroom, move it into another room, and move it back when the work is complete. 

If you can also get a few hundred dollars knocked off the rent as part of the arrangement, that would be a pretty decent deal.  The bottom line is that you must allow the landlord access, but their repeated inability to solve the problem and the resultant interference with your use of the premises might create some level of liability for the landlord.   

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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