Superstorm Sandy: Do I need to pay rent if my apartment is uninhabitable?

Landlord Wants Rent, Tenant just wants Electricity

With tens of thousands of New Yorkers homeless, or without power, a new worry has begun popping up. Rent. Some landlords have begun sending reminders to tenants, via email, that rent will still be expected. This idea of having to pay rent for an apartment that has been evacuated and is too dangerous to return to, or that has not heat and power is upsetting to many affected by Hurricane Sandy.

Landlords are taking the position that it is perfectly legal for them to demand rent from tenants. While, it may be legal to demand rent, whether a tenant has a duty to pay rent is a more complicated question.

The lease is the first place to look to understand landlord/tenant rights and duties. Most leases heavily favor the landlord, not surprising since landlords typically draft the lease agreements. However, many leases have clauses about co called casualty events, like fire and flood. Some leases may even spell out the landlord’s commitments to basic standards. However, looking to the lease alone will be cold comfort to most displaced tenants.

New York, like most states, has a robust body of law dealing with property rights, including landlord/tenant issues. New York law codifies the idea of a covenant of habitability. This means that landlords must keep the premises livable. The duty to maintain a minimally healthy and basically functional dwelling falls to the landlord. Homes where occupants have been evacuated because of fire or flood damage seem likely to be protected from paying rent. Tenants who are still in their apartments, but do not have running water, electricity, or heat also have strong arguments that their apartments do not meet the minimum standards of habitability.

Before any decision is made about paying or foregoing rent, a tenant should consult with an experienced attorney. Such decisions could have serious legal consequences.

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