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Ask Sam: How are rent abatements calculated, and am I entitled to one?

A lack of heat and hot water in winter violates the city's warranty of habitability, and should entitle you to a rent abatement.

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Question:

Is there a statutory formula for rent abatements for breach of warranty of habitability? What is the customary abatement for no heat, hot water, or gas for the month of December 2017?

Answer:

“What the warranty of habitability does is make the obligation to pay rent dependent upon the tenant having a habitable apartment,” says Sam Himmelstein, a lawyer with the firm Himmelstein, McConnell, Gribben, Donoghue & Joseph LLP who represents residential and commercial tenants and tenant associations.

Under this law, uninhabitable conditions include a lack of heat, hot water, and gas, as well as mold, pests, lead paint, and more (see a full list here). If faced with conditions like these, tenants are legally entitled to withhold their rent and receive abatements. How these abatements are calculated depends on a number of factors, including the severity of the problem, how long it has been going on, and how much of the apartment is affected, Himmelstein says. In some cases, it’s easier to anticipate what kind of abatement a tenant might receive. If an apartment has such bad mold or leaks that it is completely unlivable, for instance, the tenant is likely to get a 100 percent abatement.

But in other cases, it’s not as clear.

“It can be hard to make rhyme or reason of court decisions on this, because you don’t know how bad the problem was,” Himmelstein says. “One tenant might receive a 36 percent abatement for leaks, and another decision gives the tenant an 82 percent abatement for the same thing. What’s going on in one situation was probably more severe than in the other.”

There is also an element of subjectivity to these decisions, Himmelstein adds, and abatements often depend on the judge who hears your case, and what his or her leanings are. In your situation, while a lack of heat, hot water, and gas in December certainly makes for an unlivable home, and would likely get you a 100 percent abatement, consider what it would cost you to hire an attorney to represent you in housing court.

“Is it worth hiring a private lawyer to get a one month rent abatement?” Himmelstein asks.

Rather than take that route and break even, or even spend more than you get back, another option would be to form a tenant association, if the problem you faced was building-wide. You might also consider not hiring a lawyer and representing yourself in housing court instead.

“A lot of tenants are able to negotiate a deal on their own if they have good proof of the problem,” Himmelstein says. “Most of these cases end up settling.”

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Read all our Ask a Renters Rights Lawyer columns here.


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 at [email protected] or call (212) 349-3000.