Ask Sam: Can my landlord really put a "don't sue" clause in my lease?

Dear Sam: My landlord put a "don't sue" clause in my rental contract. Is that enforceable?

For the most part, it's unlikely that your landlord can legally prevent you from ever trying to sue them, says Sam Himmelstein, a lawyer who represents residential and commercial tenants and tenant.

"You can't waive, for example, your right to file a personal injury case if you're injured, or to sue if your apartment becomes uninhabitable," Himmelstein explains. On top of that the Warranty of Habitability, the law that determines renters' rights in NYC, specifically states that if you waive any of your rights granted by the law—for instance, by signing an agreement to never sue about an apartment-related concern—that agreement is automatically invalid.

"A lot of the housing laws have that kind of language in them, which means they become a part of New York State public policy, and any agreement to waive rights under those laws is void," Himmelstein adds. (So just because you signed a lease with that "don't sue" clause doesn't mean it'll hold up in court.)

That said, almost every standard least does have a "no counterclaim" clause or a counterclaim waiver, meaning that if the landlord sues you in landlord-tenant court, you can't file a counterclaim against them for anything that isn't "inextricably intertwined" with the landlord's claim—instead, you'd have to sue them separately.

So if your landlord sues you for unpaid rent and you respond by filing a counterclaim for damages claiming that the apartment is uninhabitable—and that you're owed a rent reduction—that will still be valid, says Himmelstein. "But if you're sued for rent and counter-sue the landlord for something unrelated like libel or assault," he says, that won't hold up in court if you signed a lease with a counterclaim waiver.

"But if it's a general clause that says the tenant will not sue that landlord," says Himmelstein, "That's void, and not enforceable."

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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.