[NYtenants-online] NY Tenants Online 12/2/01

Tenant tenant@tenant.net
Sun, 02 Dec 2001 10:00:36 -0500


NYtenants Online/TenantNet                               12/2/01
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IN THIS ISSUE ...

1. REBUILDING FOR WHOM? A Working Conference
2. Rent Wars: The Film
3. Testing the Warranty of Habitability at Ground Zero (Law Journal)

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REBUILDING FOR WHOM?
Spotlight On the Poor: A Working Conference

Thursday, December 13, 2001
10:00 AM  4:30 PM
Registration at 9:30 AM

As New York City rebuilds and national attention is focused on Lower 
Manhattan, it is imperative to pose the question "Rebuilding for Whom?" 
Absent in the public discourse on rebuilding is recognition of 9-11's 
impact on poor communities.   Now is a critical time to forge a 
redevelopment agenda that will ensure a voice for the poor and advance 
their living and working conditions in Lower Manhattan as well as across 
the City.

This conference seeks to bring together grass-roots organizers, service 
providers, urban planners, academics, and policy-makers to unite around a 
common vision that focuses on the needs of poor communities in rebuilding 
New York City.  The following issues will be addressed:

 Civil Liberties             Education            Immigrants
 Domestic Violence           Environment          Public Health
 Economic Development        Housing              Welfare/Poverty

Located at:
Pillsbury Winthrop LLP
1 Battery Park Plaza (near State & Pearl Streets)
Building entrance is at 24 Whitehall Street

Directions:
Take 4 or 5 to Bowling Green--Pillsbury Winthrop is directly across
from the subway station if you ride at the back of the train--or
N or R to Whitehall St. & walk North 34 blocks

Hosted by:
MFY Legal Services, Inc.

Lunch & Refreshments will be served

Sponsored by (list in progress): Asian American Legal Defense & Education 
Fund (AALDEF); CAAAV:  Organizing Asian Communities; Chinese-American 
Planning Council; GOLES (Good Old Lower East Side); Jobs with Justice; 
Loisaida, Inc.; PHROLES (Public Housing Residents Of the Lower East Side); 
& University Settlement

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RSVP is required for security reasons by December 10, 2001. Call Adele 
Bartlett at MFY, 212-417-3729, or fax this form to 212-417-3890 or 
3891.  Please list each attendee separately.

Name______________________________________Title_____________________________________
Organiztion_________________________________________________________________________
Address______________________________City_______________State_______Zip 
Code________
Phone____________________Fax______________________Email_____________________________

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RENT WARS: THE FILM

The premiere of Rent Wars: Ronin, the part anime, part kung fu film, part 
swords and sorcery, and part pro-wrestling animated feature will take place 
on Tuesday, December 11 at the Anthology Film Archives Court House Theater 
at 32 Second Avenue and Second Street at 7 p.m. for its single screening. 
Tickets are $10 and can be purchased at the door or online through the 
website, www.rentwars.com

Rent Wars: Ronin is the tale of a tenant trained in the martial arts of the 
Barracudi. Wounded from a previous battle, he is set upon by the Sleazy 
Slimy clan of the Slumlords and their foul Shysters. Using his training he 
is able to defend himself from the initial assault, only to find that the 
Housing Court is a house of horrors hell-bent on terrorizing tenants, 
especially those who can't afford lawyers. Will the Shysters defeat Ronin 
with their slimy attacks, including the Flush Teleport? Or will Ronin win 
justice with the edge of his blade, Stormbreaker?

Rent Wars: Ronin is based in part on real-life court battles witnessed or 
experienced by the real-life Ronin Amano, producer of the Rent Wars News 
cable television newmagazine and the Rentwars.com website.

Amano, a paralegal and journalist, says he was drawn into the world of 
tenant activism by his landlord's harassment and the failure of the 
government to stop it. But his most stinging criticism is reserved for the 
landlord lawyers and judges of the Housing Court who he says, with few 
exceptions, are engaged in the 3 Rys of the Shysters: Forgery, Perjury, and 
Bribery. Amano also claims the Housing Court is biased against the 
unrepresented.

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TESTING THE WARRANTY OF HABITABILITY AT GROUND ZERO
By Jack L. Lester
New York Law Journal
November 28, 2001

The promotional brochure for South Cove Plaza, a luxury rental building in 
Battery Park City, did not exaggerate the neighborhood's attractions. It 
described the building as "surrounded by nearly 30 acres of natural beauty" 
and "an oasis of green calm just minutes away from the financial capital of 
the world." Depicting the neighborhood as "one of the most quietly dramatic 
in Manhattan," the brochure touted the "spectacular views" overlooking the 
water, making the location an "the ideal spot to take in a sunset." All 
this was within just "a short stroll from nearby restaurants, galleries and 
the subway," with "an impressive array of grocers, stores and schools."

That was all before Sept. 11. Today, life at South Cove Plaza and the other 
residential buildings in the ground zero vicinity bears little resemblance 
to that idyllic scene. The neighborhood now might more aptly be described 
as a combination war zone/Superfund site.

Since Sept. 11, the rescue, recovery and cleanup efforts have continued 
around the clock, with a ceaseless stream of noise, dust, toxic air and 
artificial light. Months of work remain before the two million tons of 
debris are trucked and shipped out of the area. Sanitation service has been 
thwarted by road-blocks and barriers with garbage and trash accumulating at 
many locations. An extraordinary level of security persists in the 
neighborhood, with a myriad of checkpoints frustrating deliveries, visits 
from friends and relatives and other routine activities normally taken for 
granted in residential areas.

Indeed, the simple acts of coming and going are now far more difficult with 
neighborhood subway stations closed for the next several years pending 
reconstruction of tunnels destroyed in the disaster.

On top of all this, the area's residents must cope with the psychological 
trauma of living in the midst of a site where thousands of innocent people 
so recently met an unspeakable death. Many residents witnessed first hand 
the horrific events of that day, and many live in apartments that look 
directly out on the site.

Health Risks

Perhaps even more troubling to the residents are the health risks that may 
now abound in the area. When the towers collapsed, the residue of asbestos, 
masonry, ceiling tiles, carpet fibers and many other substances were 
dispersed throughout the area. Smoke and dust continue to circulate as a 
result of the cleanup efforts and fires at the site. At worst, prolonged 
exposure to these substances presents a risk of asbestosis, lung cancer and 
other diseases,[1] although government officials deny that the conditions 
present that danger.[2]

At best, the poor air quality in the neighborhood can make breathing 
difficult and unpleasant, particularly for asthma sufferers, those with 
heart conditions, the elderly and children. In any event, aside from the 
potential health risks, no one can dispute that the poor air has greatly 
diminished the quality of life for the neighborhood's inhabitants.

Faced with these profoundly difficult circumstances, tenants in the area 
have reacted in a number of ways. Some have simply picked up and left their 
apartments with no intention of ever returning. Others have left with the 
consent of their landlords, who have agreed to cancel their leases (though 
generally only if the tenant agrees to forfeit the security deposit or pay 
one or more months rent). Some tenants have decided to stay, but many are 
seeking a reduction of their rent. They maintain that a rent abatement is 
justified because the landlord has breached the warranty of habitability. 
This column explores the legal merits of their claim.

COMMON LAW ISSUES

Under the common law, a lease was considered a conveyance of an estate for 
a specified term - no more than a simple transfer of real property. So long 
as the tenant maintained the right to possess the premises, he or she was 
bound to pay the agreed upon rent, regardless of the condition of the 
premises.[3] As society evolved from an agrarian economy, however, tenants' 
expectations and needs changed. Mere possession of the property was no 
longer enough, as urban tenants began to demand appurtenant services such 
as heat, light, water, sanitation and maintenance.[4]

Recognizing that tenants had no legal remedies available to compel these 
services, the courts in New York and elsewhere began to develop the 
warranty of habitability doctrine. In 1975, the Legislature codified this 
doctrine in section 235-b of the Real Property Law.[5]

As explained by the Court of Appeals, section 235-b effectively deems a 
residential lease a "sale of shelter and services" by the landlord, who 
impliedly warrants:

[F]irst, that the premises are fit for human habitation; second, that the 
condition of the premises is in accord with the uses reasonably intended by 
the parties; and, third, that the tenants are not subjected to any 
conditions endangering or detrimental to their life, health or safety.[6]

The statute creates an "implied promise" by the landlord that the premises 
and the areas within the landlord's control "are fit for human occupation 
at the inception of the tenancy and that they will remain so throughout the 
lease term."[7]

A threshold issue in evaluating a warranty of habitability claim by a 
tenant in the vicinity of Ground Zero is whether landlords are legally 
responsible for conditions they have not caused and which are beyond their 
capacity to remedy. Unlike the typical warranty of habitability dispute, 
landlords here are generally powerless to correct the deficient air 
quality, incessant noise, diminution in neighborhood services and pervasive 
daily inconveniences caused by the terrorist attack and its aftermath.

Although an argument could be made that it would be inequitable to hold a 
landlord responsible in these circumstances, the Appellate Division, First 
Department has squarely held that the warranty of habitability can apply to 
conditions outside of a landlord's control.

In Sutton Fifty-Six Co. v. Fridecky,[8] tenants of a building asserted a 
warranty of habitability claim based on the construction of a new building 
on a lot adjacent to their building. Their landlord had no ownership 
interest or involvement whatsoever in the newly constructed building, which 
blocked light, air and ventilation to certain rooms in the tenants' 
apartments. The court ruled that the tenants had made out a legally 
sufficient claim under the statute, in that the affected rooms were no 
longer fit for the uses reasonably intended by the parties and the tenants 
were subjected to conditions dangerous, hazardous and detrimental to their 
life, health and safety.

The court explicitly rejected the landlord's position that the "culprit" 
was the adjacent landlord, citing the Court of Appeals's decision in Park 
West Mgt. Corp. v. Mitchell[9] for the proposition that "the warranty of 
habitability can apply to conditions resulting from events beyond a 
landlord's control."[10]

One could argue that the First Department's interpretation of the Park West 
decision is broader than the Court of Appeals may have intended. In Park 
West, the Court stated that section 235-b places an unqualified obligation 
on the landlord to keep the premises habitable, and that conditions 
occasioned by "ordinary deterioration, work stoppages by employees, acts of 
third parties or natural disaster are within the scope of the warranty as 
well."[11]

But the decision then goes on to state that "[i]nasmuch as the landlord is 
vested with the ultimate responsibility for the building, it is he who has 
a corresponding nondelegable and nonwaivable duty to maintain it."[12]

Indeed, the conditions complained of in Park West appeared to be of a type 
that the landlord did have the ability to remedy. Thus, it may be that, 
although conditions caused by acts of third parties, natural disasters, 
etc. are within the scope of the warranty of habitability, landlords should 
not be held legally accountable for such conditions unless they have the 
capacity to remedy them.

An alternative approach might be to hold landlords responsible for 
conditions beyond their capacity to remedy, but to take that factor into 
consideration when calculating the appropriate rent reduction.[13] In any 
event, notwithstanding such speculation about what the Court of Appeals 
might do if it squarely addresses this issue, the law in the First 
Department for now is that landlords can be held responsible under the 
warranty of habitability doctrine for certain conditions beyond their 
capacity to remedy.[14]

Tenants in buildings in the vicinity of ground zero undoubtedly were drawn 
to the neighborhood because of the extensive amenities it offered - the 
idyllic setting, the quiet and clean surroundings, the proximity to work, 
transportation and schools, etc. These amenities were aggressively promoted 
by landlords in their efforts to attract tenants to their buildings, and it 
can be safely assumed that they were a significant part of the overall 
bargain reasonably intended by the parties when they entered into their 
lease agreements.

Yet now, most of these amenities no longer exist or have been severely 
diminished. The question thus arises whether the loss of these amenities 
constitutes an impairment of the warranty of habitability such that the 
tenants' rents should be appropriately reduced.

The law is clear that the denial or loss of these types of promotional 
amenities, even if reasonably intended by the parties as part of the lease 
agreement, do not justify a rent abatement.

In Solow v. Wellner,[15] tenants of a luxury, high rent Manhattan apartment 
building argued that their landlord had breached the warranty of 
habitability based upon his failure to provide a series of amenities that 
had been promised in the building's promotional literature. The Court of 
Appeals rejected the tenants' claim, holding that section 235-b was 
intended to provide an objective, uniform standard for "essential" 
functions that a residence is expected to provide, not an individualized, 
subjective standard dependent on the specific terms of each lease.[16]

The Court interpreted the warranty as creating an "implied promise by the 
landlord that the demised premises are fit for human occupancy," but it 
does not make the landlord "'a guarantor of every amenity customarily 
rendered in the landlord tenant relationship.'"[17]

Accordingly, tenants in the vicinity of ground zero may, based upon recent 
case holdings, be hard pressed to claim that the loss of amenities that 
lured them to the neighborhood, such as convenient transportation, nearby 
schools and abundant restaurants, grocers and stores, constitute an 
impairment of the warranty of habitability justifying a reduction of their 
rent.[18]

By the same token, they would be hard pressed in claiming that post-Sept. 
11 inconveniences, such as checkpoints, barricades and other security 
measures that make it more difficult for them and their guests to come and 
go as they please and to receive deliveries, have impaired the warranty of 
habitability.

EXCEPTION ESTABLISHED

However, if it can be demonstrated that the unprecedented events of Sept. 
11 have so impaired the external environment so as to render one's 
apartment unfit for normal human occupancy an exception to existing case 
law may be established. Another exception might be the case of an elderly 
tenant for whom medicine could not be delivered, or children unable to 
attend school.

On the other hand, other conditions might make out a warranty of 
habitability claim. If it is ultimately determined that particles in the 
air are hazardous to the health of those living in the neighborhood (or to 
certain more vulnerable residents), that would provide the strongest ground 
for a rent abatement. But even if it is ultimately determined that the 
persistent poor air - which may well continue for the duration of the 
recovery and clean-up efforts - poses no general long-term health risks, 
the air is indisputably diminishing the quality of life for those residing 
in the area. The case law provides solid support for a rent reduction under 
these circumstances.[19]

The same is true for the noise that plagues the area on a round-the-clock 
basis due to the recovery and cleanup efforts at the site.[20]

Issues concerning conditions that landlords are able to remedy are more 
easily resolved. Clearly, a landlord's failure to clean up dust and other 
residue, and to do so in a safe and appropriate manner, would give rise to 
a warranty of habitability claim.[21] This should be viewed as an ongoing 
responsibility, as dust and residue regularly continue to accumulate as a 
result of the recovery and cleanup efforts. Whether the landlord's 
obligation to clean is limited to the common areas of the building, or 
extends to the interiors of tenants' apartments, is dependent upon the 
impact of individual apartment conditions upon air circulating throughout 
the building.

Additionally, the lack of sanitation service in the area imposes a 
responsibility on the landlord to arrange for regular garbage removal for 
the building.

The measure of rent reduction for breach of the warranty of habitability is 
the difference between the rent amount as set in the lease and the rental 
value of the premises during the period of the breach.[22] Expert testimony 
on this question is not required,[23] but it would be helpful on a variety 
of issues, such as rental market values, air quality risks and the extent 
of any psychological trauma suffered by tenants. As for the latter, there 
is little case law on whether it is an appropriate factor in calculating a 
rent reduction, although one decision suggests it is not.[24]

CONCLUSION

In the end, resolution of many of these disputes may be decided in the 
courts. Given the unprecedented nature of the situation and the fact that 
both landlord and tenant find themselves victimized by this terrible event, 
the courts will have to carefully draw upon their equitable powers to 
fashion results that are as fair to all parties as is possible under these 
difficult circumstances.

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. Jack L. Lester is an attorney in New York.

FOOTNOTES:

[1] See D. France, "Is Ground Zero Safe," Newsweek Web exclusive, Oct. 5, 
2001 (on MSNBC Web site, Nov. 7, 2001).

[2] At least one independent study determined, however, that the force of 
the explosions had shattered the asbestos into fibers so small that they 
evade the Environmental Protection Agency's ordinary testing methods. See 
D. France, "Is Ground Zero Safe," supra. See also "What's Lurking in That 
Smoke," Business Week Online, Sept. 20, 2001 (many scientists and 
public-health experts are concerned that, aside from asbestos, dust and 
other toxic materials may pose a greater threat and that the EPA's testing 
is inconclusive).

[3] See Park West Mgmt. Corp. v. Mitchell, 47 N.Y.2d 314, 322-23 (1979).

[4] Id.

[5] The statute provides, in relevant part:

[6] Park West Mgmt. Corp. v. Mitchell, 47 N.Y.2d at 325.

[7] Id. at 327.

[8] 93 A.D.2d 720 (1st Dep't 1983).

[9] 47 N.Y.2d at 327.

[10] 93 A.D.2d at 722.

[11] Park West Management Corp. v. Mitchell, 47 N.Y.2d at 327 (emphasis 
supplied).

[12] Id.

[13] Cf. Tower West Associates v. Derevnuk, 114 Misc.2d 158 
(N.Y.C.Civ.Ct.1982) (landlord's good faith attempt to remedy problem is no 
defense to breach of warranty of habitability, but it is relevant to 
determining extent of rent abatement).

[14] The First Department appears to have renewed its commitment to this 
principle in Elman v. Southgate Owners Corp., 233 A.D.2d 104 (1st Dep't 
1996) (landlord could be found responsible under warranty of habitability 
for noxious odor emanating from fish store in adjacent building neither 
owned nor controlled by landlord).

[15] 86 N.Y.2d 582 (1995).

[16] Id. at 589.

[17] Id. at 588 (citing Park West Mgmt. Corp. v. Mitchell, supra).

[18] Although the Solow decision defeats such a claim, it leaves open the 
possibility that the loss of promotional amenities, which could be 
construed as contractual rights of the tenant, may give rise to other legal 
and equitable remedies. 86 N.Y.2d at 589. If such remedies include 
recission of the lease, a tenant, though unable to achieve a rent reduction 
through a warranty of habitability claim, might be able to achieve the same 
result through negotiation with the landlord.

[19] See, e.g., Minjak Co. v. Randolph, 140 A.Dd.2d 245 (1st Dep't 1988) 
(dust from construction work in building, causing eye and sinus problems, 
nausea and throat soreness, impaired warranty of habitability); Edgemont 
Corp. v. Audet, 170 Misc.2d 1040 (App.Term, 2d Dep't 1996) (dust from paint 
removal work impaired warranty of habitability). See also Elkman v. 
Southgate Owners Corp., supra (odor from store in adjacent building could 
constitute impairment of warranty of habitability).

[20] See, e.g., Mantica R Corp. NV v. Malone, 106 Misc.2d 953 (N.Y.C. 
Civ.Ct. 1981).

[21] See, e.g., Minjak Co. v. Randolph, supra; Edgemont Corp. v. Audet, supra.

[22] Park West Mgmt. Corp., 47 N.Y.2d at 329.

[23] Real Prop. Law 235-b(3); Park West Mgmt. Corp., supra.

[24] See H&R Bernstein v. Barrett, 101 Misc. 2d 611 (N.Y.C. Civ.Ct. 1979) 
(tenant's anxiety may not be considered in calculating rent reduction).