[NYtenants-online] NY Tenants Online 12/2/01
Sun, 02 Dec 2001 10:00:36 -0500
NYtenants Online/TenantNet 12/2/01
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)
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
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
Pillsbury Winthrop LLP
1 Battery Park Plaza (near State & Pearl Streets)
Building entrance is at 24 Whitehall Street
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
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
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.
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
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
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.
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, although government officials deny that the conditions
present that danger.
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. 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.
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.
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
[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.
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
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, 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 for the proposition that "the warranty of
habitability can apply to conditions resulting from events beyond a
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
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."
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. 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.
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
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, 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.†
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.'"
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
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
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
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
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.
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. 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
Additionally, the lack of sanitation service in the area imposes a
responsibility on the landlord to arrange for regular garbage removal for
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. Expert testimony
on this question is not required, 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.
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
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.
 See D. France, "Is Ground Zero Safe," Newsweek Web exclusive, Oct. 5,
2001 (on MSNBC Web site, Nov. 7, 2001).
 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
 See Park West Mgmt. Corp. v. Mitchell, 47 N.Y.2d 314, 322-23 (1979).
 The statute provides, in relevant part:
 Park West Mgmt. Corp. v. Mitchell, 47 N.Y.2d at 325.
 Id. at 327.
 93 A.D.2d 720 (1st Dep't 1983).
 47 N.Y.2d at 327.
 93 A.D.2d at 722.
 Park West Management Corp. v. Mitchell, 47 N.Y.2d at 327 (emphasis
 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).
 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).
 86 N.Y.2d 582 (1995).
 Id. at 589.
 Id. at 588 (citing Park West Mgmt. Corp. v. Mitchell, supra).
 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.
 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).
 See, e.g., Mantica R Corp. NV v. Malone, 106 Misc.2d 953 (N.Y.C.
 See, e.g., Minjak Co. v. Randolph, supra; Edgemont Corp. v. Audet, supra.
 Park West Mgmt. Corp., 47 N.Y.2d at 329.
 Real Prop. Law §235-b(3); Park West Mgmt. Corp., supra.
 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).