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June 29, 2009
Withholding Rent?
Looking for input from owners who rent (or others with similar experience) on this board on a situation with my landlord. I agreed to allow my landlord into the apartment to do some work on the bathroom. The work was to last no longer than 3 days which was fine given that I would be out of town for those days. Of course the work was not done upon my return and the bathroom contained no sink, tub or toilet -- they were all in the living room. After many excuses and a whole week the landlord finally finished the work recently -- six days after it had been promised -- leaving me with none of the items mentioned above during those 6 days. Since the apartment with toilet, sink and tub is what I pay for every month I'm hoping to deduct the days off of my monthly rent. This total exceeds what the landlord has offered to deduct ($200 plus another $100 for a cleaning service)
Am I within my rights to deduct the 6 days off of my rent?
Comments
No, Get a Life!
Posted by: Rick at June 28, 2009 8:12 PM
I would report your landlord to 311, explain the situation and see if there is any recourse from the city. I would then write him a notarized letter listing your complaint, in the letter you should outline what you think should be the correct course of action by him/her in regards to a credit in rent. See where that takes you. If you hold up rent he may have the right to take legal action according to your lease. Also dig up the lease and see if there are any stipulations regarding renovations.
Good Luck
Posted by: allans at June 28, 2009 8:29 PM
I think you can only deduct certain things if you are forced to seek accommodation elsewhere(hotel) and the landlord agrees to reimburse/deduct for this. Of course you would need receipts, landlord agreement etc. to deduct that amount from your rent. $300 deduction is pretty good though...
Posted by: Misty B at June 28, 2009 8:32 PM
Forgot to say... you should definitely try to resolve the situation. Don't just withhold your rent, that can open you up to legal repercussions.
Posted by: Misty B at June 28, 2009 8:37 PM
Did your landlord offer you a shower and toilet to use while the work was being done? I'm not sure what your legal recourse is, but I would think that having a toilet and shower to use would be required.
In any event, I agree with Misty B above that you should definitely try to resolve the situation with the landlord first.
When I've had similar situations with my tenants, I've offered to deduct the rent/day as you suggested. I'd ask the landlord to consider that.
I would avoid going the 311/notarized letter route unless you've tried to work something out with your landlord first to no avail and you don't mind having an unpleasant relationship with your landlord in the future.
Posted by: ehin3 at June 28, 2009 8:45 PM
Are you really serious?
Take the $300 and move on. You really want to make a major issue over 6 days? Things happen, renovations dont always work out perfectly. Im sure your landlord did not purposely take longer than expected. Do you?
You have a brand new shower, sink, and tub now. Take your $300 and enjoy it. Life is too long to sweat this kind of stuff.
Posted by: newsouthsloper at June 28, 2009 9:00 PM
yeah, rather than get on a whole legal mess, just take the $300. Seems like he's trying to be reasonable.
Posted by: denton at June 28, 2009 9:22 PM
if the problem would be unbearable and - you could try to call him and explain, that you will move to hotel and deduct the hotel bill from the rent. But this need to be discussed upfront. I think it is still reasonable to ask to deduct 6 days of rent - I done it before when I spent a week without heat.
In any case your landlord sounds reasonable and most likely will agree on this. (at the end of the day it is a contractor who created all problems not the landlord) So I would talk to him before getting into all this big legal battle where everybody loose but lawyers.
Posted by: bobjohn at June 28, 2009 9:57 PM
If your 6-day amount isn't that much different than the $300, and otherwise you like you place/landlord let it go. #$%#$ happens. Making a big deal over a hundred bucks or so might wind up costing you more than a hundred bucks or so.
Posted by: Johnny at June 29, 2009 8:12 AM
I am a landlord now but the last time I was a tenant I moved in to a place where there was no electricity despite being assured that there would be before the move in date (electric was included with the rent so it was LL responsibility to get service).
Apparently there is a legal concept of "warrant of habitability". Not sure if lack of electricity counts toward habitability or not, I imagine a bathroom does. You can google it yourself, here's the first link that I turned up:
http://www.rentlaw.com/ny/habitability.htm
Anyway, I forget how long we had no electricity but let's say it was 5 days. Then I considered how much of the value of the apartment was imputed by the lack of electricity. We could continue to live there, sleep, bathe, but it was not convenient. I reckoned on a reduction of value of 1/3.
So, let's say I was paying 2,400 per month, further let's say it was a 30 day month.
$2,400/month rent * 5 days inconvenience/30 days in month * 1/3 inconvenience factor = $133.33 fair rent reduction for 5 days inconvenience.
On top of that you could add a cleaning fee (did not apply to us).
We presented this to the managing agent and she agreed immediately. This was our first interaction with each other and I think we were both pleased to see that we were dealing with reasonable people.
Personally, the only way I can see justifying claiming a full refund of rent for the days you were inconvenienced is if you had no use of the apartment. This is not a legal opinion, just my thought on what is fair.
Posted by: phripley at June 29, 2009 9:28 AM
Yes you have a right to deduct the money for the 6 days of inconvenience. You have to be careful how you do it. You don't want the landlord suing for non-payment.
Maybe you can file an HP proceeding in housing court. Call the housing court and they will instruct you in the paperwork.
You will get a free lawyer from the court. It dosnt matter how much money you have. They wil represent you in the action.
It is part of the Hp proceeding.
Good Luck.
PS
Lets hope you can verify all this.
Posted by: Ysabelle at June 29, 2009 9:40 AM
No bathroom!? And the toilet in the living room ..yuch. I think absolutely OP is entitled to 6 days rent if not more. And also it might not be worth fighting over it. Try negotiation.
When our tenant's washing m/c broke and we couldn't get a new one for 9 days, my wife wanted to reimburse them $100. Even I balked. We bought them a bottle of champagne. I guess we are just wimps as landlords.
Posted by: cmu at June 29, 2009 9:41 AM
I think it's probable that the LL was at the mercy of the contractor & it sounds as if he tried to do his best for you. In a similar position, I've offered tenants accomodation in my house but they've always opted to stay where they are & make use of a neighbor's facilities. What did you use in the interim? If you were able to make do, I'd just take what he's offering since you managed w/o too much duress. He's already out of the money he put into the repairs & I think he made a reasonable suggestion.
Posted by: Arkady at June 29, 2009 9:59 AM
A synthesis of the above: negotiate in good faith and then, depending on how much you like your apartment/landlord, take your lumps or go to court.
Long-story-short, I feel like my landlord owes me $150 for problems with KeySpan. He's kind of hippie-dippie about the whole thing--it is Park Slope--but I am generally pretty happy with my set up so I let it slide. That doesn't mean it doesn't piss me off every time I think about it. It means that I don't think about it a lot.
Posted by: altervoce at June 29, 2009 10:35 AM
IMO, take the $300 and drop it, OP.
Posted by: bridges at June 29, 2009 10:44 AM
An apartment without a bathroom isn't really an apartment, is it? How are you supposed to live in a place with no toilet? It sounds to me like the ll made a slightly lowball offer and you should counter with what you think is reasonable (with the logic to back it up). I agree that involving 311/notarized letters/etc etc should only happen if negotiations fail.
Posted by: geekspice at June 29, 2009 10:49 AM
Take the $300 and drop it... all's well now? sink,tub
and toilet back in place? landlord cleaned the mess up?
Move forward!
Posted by: bren at June 29, 2009 10:52 AM
You have to be very careful about witholding rent if you think you may ever want to rent another apartment in the City. There are lists compiled by certain companies of tenants who withold rent or who cause trouble to landlords. Unfortunately, many landlords will not accept anyone on that list even if they had a legitimate reason to withold rent or take a landlord to court. Affordable apartments are very scarce and landlords would rather not "risk it" with tenants who have a history, however benign, of not paying rent.
In your case, I don't think a few day's rent is worth the possible future repercussions. Besides, you have a new bathroom now!
Posted by: sam at June 29, 2009 10:59 AM
LL is offer three, what do you think you are entitled to? Five, Six? All of the suggestions above are rational if you are talking about a lot of money, but for a few hundred do you really want to start litigating? The time spent preparing the documents are not even worth it, much less showing up in court and dealing with an adversarial living situation.
Is this really about the money, or are you just looking to exact your revenge for being put out?
Posted by: newsouthsloper at June 29, 2009 11:11 AM
did you have a second, working bathroom in the aparmtment you could use during the work? if so, take his offer. If this was your one and only bathroom, deducting those 6 days is more than fair.
Posted by: Ringo at June 29, 2009 12:17 PM
I agree with Ringo. There's a huge difference between having a 2nd working bathroom, and having the only bathroom out of commission. If it's the 2nd bathroom, I'd probably just let it go with what the landlord offered as it appears he's trying to be reasonable for your troubles. If it was your only bathroom, the apartment is basically uninhabitable without a working toilet, and the 6 days is fair. I would certainly approach the landlord with your "offer" -- I can't imagine your rent is so high on a 1 bath apartment that the 6 days would amount to more than $100-$150 than the $200 you were offered. However, if you like the landlord and he generally treats you nicely, I'd probably let it go if the amount wasn't significant.
Posted by: CGfan at June 29, 2009 12:39 PM
Of course this is the kind of inconvenience that anyone who owns their own one-bedroom apartment has to go through when renovating the bathroom. Thinking that it can be done in 3 or 4 days is unrealistic. I have had friends who had to shower at the gym for a month. Usually the contractors re-install the toilet every night, but brushing teeth etc, has to be done in the kitchen sink. People get through it.
Posted by: sam at June 29, 2009 12:45 PM
You agreed to 3 days. It took 6. $300 for the extra 3 days seems reasonable. Or did it take 9 days in total?
Posted by: Windsor Terror at June 29, 2009 3:36 PM
doesn't quiet enjoyment legally cover this?
Posted by: duckumu at June 29, 2009 4:02 PM
They re-install the toilet every night? Wow, that is amazing.
Posted by: mopar at June 29, 2009 4:11 PM
You have a lease which is a contract. The LL is required to maintain the apartment, 'warranty of habitability'. Furthermore, it sounds as if essential services were withheld. You were 'constructively evicted' from your bathroom and possibly your living room as well. If a LL is going to do repairs that will prevent you from using your apartment, he will generally need to relocate you (in another unit, hotel etc). Yes, your LL is liable to you. It is his fault. If his contractor breeched the repair contract then the LL can sue the contractor, or seek compensation from him...why should you be the one who is screwed? You were informed that the work would not last longer than three days.
The value of the compensation would need to be determined by your rent amount, the services/areas that were not fully usable and the duration. Perhaps inconvenience suffered would also be an issue. If you had rented a hotel room the LL while your apartment was undergoing those repairs, I'd think any judge would easily order reimbursement.
You can either negotiate for what you believe to be fair compensation, initiate a small claims court case, or withhold rent and let the LL take you to court and put in your answer with warranty of habitability defense.
You have to factor in what is reasonable compensation with the effort of court.
Without knowing the type of unit, your monthly rent, etc. it is impossible to calculate an abatement so take any advice given here with a grain of salt (i.e., a $300 abatement has a different meaning if your rent is $500, $1000, $5,000...how can anyone here offer reasonable advice without the essential facts?).
You would do better to consult tenant advocates for advice, rather than landlords.
Go here for a better discussion of the merits of various options then decide what is the best course of action:
Good luck.
Posted by: Oxygen at June 29, 2009 4:47 PM
Great advice Oxygen, If you really want to tie up tremendous amounts of your time and the court system for a few hundred bucks....
Posted by: newsouthsloper at June 29, 2009 5:17 PM
Thank you.
My advice is to examine the issue and amounts more carefully and then make an informed decision...and AT ALL COSTS avoid taking advice from landlords. Landlord's will not represent the OP's best interests.
The housing and civil courts exist to resolve disputes such as these. Judges will gladly inform you of this....that you are NOT wasting their time, it is what they are paid for. This situation...breech of warranty of habitability and withholding of rent, are among the most common housing court cases.
If the OP is not being adequately compensated for damages and the LL is unwilling to remedy this, she should by all means seek resolution in court. There was a oral contract that the work would be completed in 3 days.
Without the complete factual info about what transpired, any specific advice we give is unrelated to the OP's specific situation.
Next time you are without use of your bathroom (...and your living room) for a week++...based on someone else's breech of contract, you'll have occasion to effectively evaluate it's monetary value to you.
Posted by: Oxygen at June 29, 2009 6:05 PM
Lawyer here, not a housing or L/T lawyer, but a real estate lawyer who is going to weigh in, but if there are other more qualfied professionals out there feel free to disagree with me. I have pasted the relevant section from the NYRPL below. Keep in mind, courts interpret the warranty very strictly- only conditions such as failure to provide electricity, heat (in winter) or running water for extended periods of time, infestations by pests or unsafe structural conditions will satisfy the strict test.
I agree with Oxygen that more facts are needed because whether or not the warranty was breached is a question of fact. If there is a second bathroom in the apartment, there is no way was a court would determine your your Warranty of Habitability was breached. Certain other factors may lean in your landlord's favor: (1) you gave your landlord permission to do the work and a court may determine that it's reasonable to expect delays and unless the landlord was negligent in completing the repairs on time, (2) if your landlord agreed to pay for a hotel stay and you elected to remain in the apartment, and/or (3) if your landlord provided you with access to his/her apartment to use the restroom thereby providing you with an alternate access to plumbing. Basically, I don't think you have an open and shut case here as to whether a court would determine that your landlord breached the warranty.
What I will say is this, you do not have the right to just withhold rent. Withholding rent is a remedy that is intended to give the landlord financial incentive to repair the condition that renders a unit unihabitable. Generally, a tenant must send a letter to the landlord detailing the offending condition (notarization is not necessary here- no one is going to challenge whether or not you actually wrote and signed the letter; note however, it would be prudent to send the letter certified mail, return receipt requested and save both a copy of the letter and the delivery certification) and then fund the withheld amount into some escrow account pending resolution of the dispute in order to prove that you are willing and able to pay rent and not merely looking for a windfall. Otherwise, a landlord can sue its tenant for non-payment of rent. Then either party or the court would order an inspection of the premises if the condition is disputed and then, depending on the findings, the court would then order the landlord to repair the condition and award the tenant an abatement in rent calculated on the percentage of the premises that were untenable for the given time period.
I don't think you want to sue your landlord for breach of the warranty and I don't think you want to be sued for non-payment of rent either. Of course, if six days of per diem rent is significantly more than $300 (plus the savings in court costs and time) and if you don't care about creating an adversarial and tense relationship with your landlord, that may change the cost/benefit analysis for you. I agree with the other posters who say your best bet is negotiate with your landlord for a reasonable rent abatement with your landlord. But negotiate a concession in advance and agree to it in writing; don't resort to rent witholding and open up an ugly can of worms when it sounds like your landlord is reasonable.
New York State Real Property Law s. 235-b
The Warranty of Habitability
1.In every written or oral lease or rental agreement for residential premises the landlord or lessor shall be deemed to covenant and warrant that the premises so leased or rented and all areas used in connection therewith in common with other tenants or residents are fit for human habitation and for the uses reasonably intended by the parties and that the occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety. When any such condition has been caused by the misconduct of the tenant or lessee or persons under his direction or control, it shall not constitute a breach of such covenants and warranties.
2.Any agreement by a lessee or tenant of a dwelling waiving or modifying his rights as set forth in this section shall be void as contrary to public policy.
3.In determining the amount of damages sustained by a tenant as a result of a breach of the warranty set forth in the section, the court; (a) need not require any expert testimony; and (b) shall, to the extent the warranty is breached or cannot be cured by reason of a strike or other labor dispute which is not caused primarily by the individual landlord or lessor and such damages are attributable to such strike, exclude recovery to such extent, except to the extent of the net savings, if any, to the landlord or lessor by reason of such strike or labor dispute allocable to the tenant's premises, provided, however, that the landlord or lesser has made a good faith attempt, where practicable, to cure the breach. (c) where the premises is subject to regulation pursuant to the local emergency housing rent control law, the emergency tenant protection act of nineteen seventy-four, the rent stabilization law of nineteen hundred sixty-nine or the city rent and rehabilitation law, reduce the amount awarded hereunder by the total amount of any rent reduction ordered by the state division of housing and community renewal pursuant to such laws or act, awarded to the tenant, from the effective date of such rent reduction order, that relates to one or more matters for which relief is awarded hereunder.
Posted by: meeva at June 29, 2009 7:40 PM
Meev
Thank you for for taking a simple subkect and complicating everyine;s life on this post/
Let's not forget the confusion/
The idea is to inform people how ro fix a problem cheaply amd efficiently..
Posted by: Ysabelle at June 30, 2009 3:21 PM
"The idea is to inform people how ro fix a problem cheaply amd efficiently.."
That would be a clear violation of the Lawyer Code of Ethics.
Posted by: newsouthsloper at June 30, 2009 3:56 PM
My spelling is rotten. So spank me.
Posted by: Ysabelle at June 30, 2009 6:16 PM
If the matter ends up in court it is the landlord's fault. The landlord's fault. You know, the person being unreasonable. Anyone suggesting that you lay down is helping to undermine the free society under law we live in.
This is assuming there was only one bathroom, the problem was not an act of god, and $300 is less than 6 days rent. The LL has the obligation to supply a hospitable apartment. I don't understand why anyone would pay for a service not rendered. That would be like paying for a tree not cut down. Any days the LL does not do so the LL should not be paid. People insulting Oxygen's post are insane
Posted by: Blindweb at August 11, 2009 5:39 AM
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