Dear Sam: I've heard that if there are enough problems with your apartment, you can qualify for a "rent abatement" to pay a discounted amount of rent. What kind of issues qualify, and how much of a discount will I get?
Yes, certain problems will entitle you to a rent abatement, but don't assume you can start shrinking your rent checks the first time something goes wrong, says Sam Himmelstein, a lawyer who represents residential and commercial tenants and tenant associations.
"Abatements are really hard to predict," says Himmelstein. "They're all over the map." In New York, landlords are obligated to uphold the Warranty of Habitability, which means that your apartment is free of conditions that are "dangerous to life, health, and safety." And that wording "is very broadly construed" by the courts, says Himmelstein.
A few of the most common violations are things like lack of heat or hot water, leaks, and falling plaster, as well as environmental hazards like the presence of lead, asbestos, or construction dust. Inadequate building security and infestation by vermin can also qualify as violations, says Himmelstein. (More examples of common Warranty of Habitability violations can be found here.)
Keep in mind that you're not as likely to win an abatement for problems with your building's amenities or other extras. "You're not going to get an abatement for a Warranty of Habitability breach because you can't use the swimming pool, or some other service is no longer provided," he says. That is, if you're a market-rate tenant. If you're rent-stabilized or rent-controlled, on the other hand, you're entitled to a continuation of the services you had when you signed the lease, so if your building's pool goes kaput, you can apply to the NYS Division of Housing and Community Renewal for a rent reduction.
One major exception: if the problem is caused by a labor stoppage—e.g. a pile-up of garbage during a sanitation workers' strike—landlords generally aren't held responsible, and you won't be entitled to lower rent. However, if a strike means the landlord saves money they would have spent paying workers who've walked out, they will be required to pass a certain amount of those savings onto tenants in the form of abatements.
As far as how much you'll get, Himmelstein says, "The amount of the abatement depends on the severity of the problem—how bad it is, and how many rooms are affected." For instance, you'd get more of an abatement if you have leaks in your bed, bathroom, and kitchen than you would if it were just a leak in your bathroom. Another example: the standard abatement for lack of cooking gas is generally around 10 to 20 percent. "There are plenty of cases where a tenant gets nothing or very little, and plenty where a judge finds a total breach and awards a 100 percent abatement," Himmelstein says. (The latter case usually happens if the apartment is in such bad shape that the tenant can't actually live there.)
If you think your apartment has problems that might qualify you for an abatement, as always, the first step is to notify the landlord in writing, either via email, fax, or certified mail. Abatements can only happen "provided the tenant themselves didn't cause the problem (or prevent it from being fixed), and that the landlord was aware and didn't remedy the situation," says Himmelstein.
One more thing to keep in mind: abatements are awarded by judges, so be prepared to go to court. Usually with rent abatements, tenants approach the problem by withholding rent, and when the landlord takes them to court, defend themselves on the grounds that there's been a breach of the warranty of habitability. And don't forget, if you win your case, the landlord may very well be obligated to cover your legal fees, in addition to discounting your rent—but you still might end up on the city's tenant blacklist.
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Sam Himmelstein, Esq., represents NYC tenants and tenant associations in disputes over evictions, rent increases, rental conversions, rent stabilization law, lease buyouts and many other issues. He is a partner at Himmelstein, McConnell, Gribben, Donoghue & Joseph in Manhattan. To submit a question for this column, click here. To ask about a legal consultation, email Sam or call (212) 349-3000.