Case Notes in

Warranty of Habitability

First published: Jun 2009
Bender v. Green, Zayas v. Franklin Plaza

Bedbugs have become a major nuisance in many apartment buildings. It appears that it is not an issue of whether the building or apartment is clean or well maintained. Bedbugs can be found in homes, at certain workplaces, and in hotels. They can be transmitted through luggage, furniture, bedding, or clothing. We understand that there are no accurate statistics, but that HPD has issued more than 2,700 bedbug violations in the last year. Indeed, in March 2009, Mayor Michael Bloomberg signed a law creating a “Bed Bug Advisory Board” to study health concerns as a result of bedbug infestation. The cases discussed here are consistent with other recent decisions holding that a tenant (or co-op shareholder) may receive an abatement of rent because of the presence of bedbugs in their apartment. As a practical matter, we believe that in response to a complaint made by an apartment occupant, a board should act quickly to inspect, identify the problem and eradicate the infestation. It is probably not enough to assert that it is the shareholder’s responsibility under the proprietary lease to maintain the apartment in “good repair.” The warranty of habitability is a potent resource for tenants to impose onto landlords the burden of remediating the presence of bedbugs. Other laws may offer relief from bedbugs for condominium occupants.

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First published: Sep 2008
Fraser vs. 301-52 Township Corp.; Bryan T. Netti vs. Auburn Enlarged City School District; Friedman vs. Madison 40 Associates

The issue of whether there is a causal relationship between personal injury (and specifically respiratory problems) and a moldy or damp environment is being heavily litigated in matters concerning apartments, schools and the workplace. At this time, we await the appellate court’s decision in Fraser, as that holding will likely dictate whether the courts in Manhattan and the Bronx will be required to allow experts to testify that a plaintiff’s illness was caused by a moldy or damp environment. Boards of co‑ops and condominiums should be reminded that, regardless of whether it is ultimately determined by the courts that there is a causal relationship between mold and personal injury, it is important to remediate mold to mitigate property damage claims. Whether the remediation is to be performed by the cooperative or condominium, or the shareholder or unit-owner, may be an issue to be determined on a building-by-building basis based on the specific governing documents.

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First published: Mar 2007
Poyck v. Bryant

This is a case of first impression and may signal the first of many cases that could lead to severe restraints on the ability of co-op owners to smoke in their apartments, especially when neighbors complain of tobacco odors. While secondhand tobacco odors have long been viewed as a nuisance, they are now being treated as a health hazard that may be regulated. Boards must be vigilant to this hazard and act to remedy what may now be viewed as a breach of the warranty of habitability. That switch carries real consequences for a board.

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First published: Jan 2007
Colin Fraser v. 301-52 Township Corp.

This decision is helpful for owners of residential property in New York, including cooperative and condominium boards. It firmly establishes the view that mold concerns in apartment buildings – the latest environmental issue of the past 30 years – are unlikely to have the same impact as have such prior environmental issues as asbestos and lead-based paint. Mold is not as serious a health hazard as has been suggested elsewhere. Of course, the presence of mold in water-damaged environments still must be remediated expeditiously to mitigate property-damage claims. Nonetheless, until there is an appellate decision on personal injury from mold, it would be wise to view this decision cautiously. It is not the last word.

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First published: Jan 2006
315-321 Eastern Parkway Development Fund Corp. vs. Wint-Howell

The statutory warranty of habitability was enacted by the state legislature in 1975 to insure that all tenants, including co-op owners, could enjoy safe and comfortable housing and has been a potent weapon for tenants ever since by providing rent abatements when the statutory standard was not provided by landlord. Here, the co-op embarked on needed renovations to its property for the benefit of all unit owners. Since the work was necessary, under the Business Judgment Rule applied by the court, great deference was given to the decision of the board to undertake the repairs without requiring some sort of rent abatement for the inconvenience of a few unit-owners caused by the renovations.

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First published: Sep 2005
Litwack v. Plaza Realty Investors

The coincidence of the decisions in the two cases with different results led to reconsideration of the lower court case which was at variance with the one decided by the appellate division. As a result, the decisions were reconciled and the Litwack action was dismissed based on Beck. Despite this reconciliation, which provides that actual knowledge or notice of a mold condition itself is required to impose liability on a landlord, a landlord’s liability for mold conditions remains an emerging legal issue and further decisions can be expected. In the interim, steps can be taken by co-op and condo managers and boards to control both damage and liability. Preventive maintenance and prompt and appropriate remediation, using experienced specialists where indicated, are key. Identifying and repairing the source of water leaks will prevent recurrence

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