I rent out a one bedroom, and there is a leak in the gas pipe in the basement that Con Ed says could take months to repair. In the meantime, I gave my tenants a two-burner skillet and grill, and have offered to pay the difference in their electricity bill until the issue is solved. I also offered to pay for washing and folding services during the three days that building will not have dryers. The tenants are now saying they are going to breach the lease if I don’t give them a rent abatement. Can they do this? If I don't give them an abatement, can they take me to court?
It sounds like you've taken several steps to make the lack of gas easier on your tenants. Nevertheless, it may be in your best interests to also give them a rent abatement, our experts say.
Under the city's Warranty of Habitability, landlords are required to provide gas to tenants; if there is none, or if it's leaking, it's considered a violation of the law.
This means that even though the delay in getting your building's gas pipe repaired is not your fault, you're still responsible, legally speaking.
"The landlord’s obligation is to restore the service ASAP," says Frederick Park, a partner with Cornicello, Tendler & Baumel-Cornicello. "Unfortunately for landlords, the fact that Con Ed may be slow in restoring the service won’t relieve the landlord of these obligations."
You could be held accountable by a housing court judge if you tried to take your tenants to court for withholding rent, Park adds, as well as by the DHCR if your tenants file a complaint about a lack of service.
"The tenant can commence what is known as an HP case in the housing part of the civil court to seek an order directing the landlord to restore the service, but that court can only order the correction of code violations like a lack of gas service, and cannot order a rent abatement," Park says.
HP actions are designed to force landlords to make necessary repairs. In your case, since it's out of your hands, such a case could be settled by agreeing to some kind of repayment. A judge might order you to repay expenses the tenant incurred due to lack of gas, like the cost of eating out because they can't cook at home.
However, given the steps you've taken to mitigate the situation, you could try pushing back.
"The landlord can take the position that he or she has done all they can do to address the issue at hand and decide not to give the tenant an abatement," says David Skaller, a partner with Belkin Burden Wenig & Goldman. "On the other hand, the landlord can try to come to agreeable terms with the tenant on an abatement. If they do not come to terms and the tenant withholds rent, the landlord can sue the tenant for nonpayment of rent and the tenant will assert a defense of warranty of habitability."
In that event, you would need to prove to the court that you took steps to address the lack of gas, and therefore the tenants are not entitled to an abatement. Keep in mind, too, that if the situation is as you describe, the tenants aren't legally permitted to break their lease. (Lease breaking is allowed if tenants can claim constructive eviction—that is, if the apartment has been rendered uninhabitable.)
At the end of the day, though, you may find it less of a headache—and perhaps cheaper—to avoid going to court and just doing as the tenant asks.
"Practically speaking, while it may be distasteful, or even feel like extortion, agreeing on an abatement amount until the service is restored is the most typical resolution reached in court cases of this nature and likely the most expedient and cheapest option for the landlord," Park says.
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