• Melissa L. Steinberg

Welcome to the Neighborhood: Part Two

Updated: Aug 29, 2019

So, picking up from where we left off – let’s say the joint landlord-tenant inspection revealed that a closet door did not fully close.  The tenant took date-stamped pictures of the defect, so it’s clear that this was a pre-existing defect, and not caused by the tenant.  The landlord promised to fix the problem before the tenant moved in, but when moving day rolled around, the tenant noticed that the closet door was still broken.  What happens next?

Like most new tenants, this hypothetical tenant noticed the problem, but was too busy unpacking boxes and starting up utilities to deal with the broken closet door.  The closet also was likely not a top priority for the tenant because, while a non-closing closet door is an annoyance, it’s probably not a threat to the tenant’s health or safety.  In real estate parlance, we would say that the closet door defect is not a breach of the warranty of habitability, which is a guarantee provided for by New York state law (even if it’s not written into a lease) requiring that every landlord maintain every residential premises in a safe and habitable condition.  This is actually not a particularly high bar: it simply means that every residential unit must be maintained at a level safe for humans to live there, no more, no less.  Sufficient heat and proper sanitation fall under the warranty of habitability; minor structural problems, like a broken closet door, do not.

However, the tenant in this situation is not completely without recourse.  Landlords do have an obligation to repair known defects, and since the closet door defect was revealed by an inspection, and the landlord was clearly aware of the problem and promised to fix it, the landlord would be expected to repair the closet door.  (This is why the move-in inspection, even if it is performed after the lease is signed, is so important!)  In this case, the landlord promised to fix the closet door before the tenant moved in.  This didn’t happen.  First and foremost, the tenant should call the landlord and remind him to fix the closet door.  Hopefully, the landlord will promptly fix it, or make arrangements for someone else to fix it, and that will be that.  Occasionally, however, more effort will be required to get the desired result.

If the landlord doesn’t respond in a reasonable amount of time (say, three to five days) after you call the landlord to request the repair, the next step is to send a letter.  This should be a relatively formal business letter, stating that x repairs were promised on y date, the repairs were not made on time, the tenant called the landlord on z date, and the landlord has still failed to make the repairs.  The letter can still be conversational and friendly in tone, however, as the goal is to coax action out of the landlord, not to alienate him and damage the landlord-tenant relationship.  It is best to send the letter via certified mail, return receipt requested, even if the landlord lives in the same building.  This is so that you have proof that you sent the letter to the landlord, and the landlord received it, should such proof ever be necessary down the road.

If the landlord still does not respond, you need to decide what the closet door repair is really worth to you.  Will it impact your life in a major way if the closet door does not close all the way?  Will this be a hardship for you, your family or your guests?  Since it is a relatively minor repair, it likely is not worth reporting your landlord to local agencies, or engaging in litigation, unless this defect really will cause you a genuine, significant hardship.  You can always ask if the landlord would rather have you arrange for someone else to make the repair instead, and then deduct the cost from your rent, but you must be careful: this sort of arrangement seems to attract litigation.  What you consider to be a reasonable cost for the repair may not comport with your landlord’s view, and when you try to deduct the full cost of the repair from your rent the next month, you could be inviting a world of trouble for months to come.  I would say it’s generally a good rule of thumb not to go out of pocket on repairs expecting reimbursement if you have any other alternative.  If you decide that the effort to force the landlord to repair the closet door outweighs any potential benefit of taking further action, at least you documented your efforts to get the repair made, which will be important at the end of the tenancy in case the landlord attempts to deduct money from your security deposit to repair the door.

In our next installment, we will explore a situation in which a serious defect develops after the inspection, and the steps necessary to resolve such a situation.

#DoIreallywanttosue #inspection #repair #warrantyofhabitability

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