My lease says I’m responsible if the windows or door lock breaks while I’m a tenant. Is that fair?
- If the damage wasn’t your fault then the landlord can't hold you responsible for repairs
- Owners are required to fix broken windows and doors under the warranty of habitability
I recently moved into a new apartment in Brooklyn. The lease says I’m responsible for any broken windows or door locks while I live there. Do I have to pay even if the damage isn’t my fault? Can I push back on this?
A lease provision that requires a tenant to pay for a broken window or apartment door lock—if the damage wasn’t the tenant’s fault—is likely unenforceable, according to our experts. That’s because your landlord has a responsibility under the warranty of habitability to make necessary repairs to your apartment.
The warranty of habitability—a set of requirements guaranteed by the law in every lease—supersedes any specific lease provision, says Andrew Wagner, a partner at law firm Herrick Feinstein. A broken window or door lock would arguably violate your right to reside in a “livable, safe, and clean apartment" as guaranteed under the warranty of habitability.
And if the broken window or lock wasn’t your fault, your landlord likely can’t force you to pay to get it fixed, says Sam Himmelstein, an attorney at Himmelstein, McConnell, Gribben & Joseph who represents residential and commercial tenants and tenant associations. (He’s a Brick sponsor FYI).
“I would say a provision that requires a tent to repair those items regardless of fault is unenforceable,” Himmelstein says.
Who is at fault?
If you are throwing a party and one of your guests breaks a window, you could be held responsible for the cost of repairs, Wagner says. And a landlord has a right to violate a tenant whose “willful or grossly negligent” behavior causes substantial damage to the building under New York City’s Housing Maintenance Code.
But provisions asking a tenant to repair a broken window or door lock, without reference to who caused the damage, likely represent a landlord’s attempt to shirk their legal responsibilities, Wagner says.
“It sounds like this is just another attempt to pass obligations of landlords on to their tenants,” Wagner says. “Anything can happen [in court], but my gut is telling me that that would not be enforceable.”
If a landlord tries to take the cost of the damages out of your security deposit, you can try to get it back by initiating an action in small claims court, Wagner says. You can also file a complaint with the New York attorney general by filling out a form and providing additional evidence.
Should I negotiate a new lease?
While Wagner wasn’t sure how common these kinds of provisions were, he recommended renters consider the apartment market before asking for certain clauses to be removed from a lease before signing.
“Residential leases are not usually negotiated…because there are so many protections in place already [for tenants],” Wagner says. “If there's a shortage of apartments, and a prospective tenant starts raising too many questions, the landlord may see that as a red flag and say, ‘this person is going to be trouble,’ and will go on to the next person.”
But if you’re not in a rush to seal the deal, it’s worth asking for clarification about a provision that would require you to cover damages to your windows or door locks that weren’t your fault. It’s also worth watching out for as a potential red flag in a new lease, Wagner adds.