Because of an electrical issue in my building, we had no hot water for 10 days. I asked management about prorating my rent, but they said wouldn't do it because they had been working on the problem. Am I legally entitled to a rent abatement for that period?
Yes, you are entitled to an abatement, but you need to consider whether getting the discount is worth a fight with your landlord, says Sam Himmelstein, a lawyer at Himmelstein, McConnell, Gribben & Joseph, who represents residential and commercial tenants and tenant associations.
“The question is, how much of an abatement can you get, and what do you have to do to get it? Is it worth the battle?” Himmelstein says.
Hot water is considered an essential service, and a lack of heat and hot water in your apartment is a violation of the city’s warranty of habitability, which guarantees a safe and livable apartment for all tenants. When conditions in an apartment don’t live up to these requirements, tenants are legally entitled to a reduction in their rent.
Part of the difficulty in securing an abatement in your case, though, is that there is no fixed dollar amount on the books to compensate tenants who went without hot water for a short period of time.
“Some housing court judges might give you a 20 to 25 percent reduction for each day you didn’t have hot water. Others might feel that a lack of heat or hot water makes an apartment completely uninhabitable, and give a 100 percent reduction,” Himmelstein says.
You could decide on your own to withhold a certain amount—say, 20 percent of your rent for that month—and deduct that from your next payment. Your landlord, in turn, might respond that if you don’t pay the full month’s rent, they will sue you in housing court.
You would have the defense that they violated the warranty of habitability, but the question is whether it’s worthwhile for you to head to housing court over the issue.
“It might not be practical for the landlord to sue you over that amount of money, but neither is it practical for you to go to court, with or without a lawyer,” Himmelstein says. “Even if you walk out of court winning the case, is it worth spending days there, and ending up on the tenant blacklist?"
It may be easier to chalk up the days without hot water as a temporary inconvenience that is now thankfully over. On the other hand, if the issue recurs or becomes an ongoing problem, you should take further action. Call 311 to report the outage and get a violation placed on the building. You could also file an HP proceeding in housing court to force management to make the needed repairs.
And at that point, Himmelstein says, “You might want to withhold your rent, because if this has been going on for a couple months it’s probably worth it.”
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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 & 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.