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Perspectives

Warranty of Habitability Held Breached by Construction Work

Every residential lease in New York incorporates a warranty of habitability. In West 30th Realty LLC v. Castaldo, 2020 N.Y.L.J. LEXIS 306, Index No. 58883/2014 (Civil Court N.Y. Co. Jan. 23, 2020), tenants contended that this warranty of habitability was breached by conditions including scaffolding outside their windows, which blocked light from the premises, made it impossible to use the air conditioner, and deprived the tenants of privacy when contractors were present outside their windows. In addition, various tenants testified that for years, construction activity caused “horrendously loud” noise as well as extensive dust contamination and vibration. The court stated that “[w]hile [the landlord] argues that construction is a reality of New York City living, such a reality does not gainsay the negative effect that construction can have on the habitability of an apartment.” Although the courts had allowed 25% rent abatements for noise, vibrations, and dust caused by daytime construction activity, in this case the landlord had misrepresented to the Department of Buildings that the building was unoccupied, thus avoiding the requirement to submit a tenant protection plan. The court concluded that this “aggravating factor” warranted an increased rent abatement of 40%.