New York Real Property Law 235-b: Warranty of Habitability

Under New York’s warranty of habitability, every residential landlord in the state automatically promises that your apartment is fit to live in and free of conditions that endanger your life, health, or safety. The promise is written into Real Property Law Section 235-b, it applies whether your lease is written or verbal, and no clause buried in a lease can waive it.¹ If your landlord fails to keep that promise after you’ve given notice, you have several ways to push back.

What the Warranty Actually Guarantees

Section 235-b covers every residential tenancy in New York: apartments, single-family rentals, mobile home parks, cooperative housing, and public housing. The statute deems the landlord to warrant that the premises and any shared common areas are fit for human habitation and suitable for the uses both sides reasonably had in mind, and that tenants will not face conditions dangerous to life, health, or safety. Any lease term trying to weaken those protections is void as against public policy.¹

The Court of Appeals set the standard in Park West Management Corp. v. Mitchell: a breach exists when, in the eyes of a reasonable person, defects in the dwelling deprive the tenant of the essential functions a residence is expected to provide. A residential lease, the court said, is essentially a sale of shelter and the services that come with it. Your landlord isn’t required to deliver a perfect apartment, but nothing can be present that materially affects your health or safety. The court pointed to insect and rodent infestations, insufficient heat, plumbing failures, dangerously faulty wiring, and inadequate sanitation as clear examples.²

Conditions That Commonly Breach the Warranty

Heat, Hot Water, and Other Utilities

Functioning heat, hot water, cold water, and safe electrical service are baseline requirements. In New York City, heat season runs from October 1 through May 31. Between 6:00 a.m. and 10:00 p.m., if the outside temperature drops below 55°F, the apartment must reach at least 68°F inside. Between 10:00 p.m. and 6:00 a.m., the indoor minimum is 62°F regardless of the outside temperature.³ A building that misses those numbers during a cold stretch is in breach.

Environmental Hazards

Peeling or deteriorating lead-based paint in pre-1978 buildings is one of the most serious violations because of the risk to children. Extensive mold from unresolved leaks, asbestos, and other toxic materials in living spaces also qualify. Federal law separately requires landlords of pre-1978 housing to disclose known lead hazards before you sign the lease, hand over an EPA-approved pamphlet, and keep the signed disclosures for at least three years.⁴

Structural and Safety Defects

Persistent vermin, broken locks on entry doors or accessible windows, collapsing ceilings, and compromised fire escapes all breach the warranty. The apartment doesn’t have to be completely unlivable. If the condition materially affects your health or safety, the reasonable person test is met.

When the Warranty Won’t Help You

The statute carves out one clear exception: conditions caused by the tenant or someone under the tenant’s control are not the landlord’s problem under Section 235-b.¹ If you damaged the wall or clogged the plumbing, you can’t invoke the warranty to force a free repair, and landlords raise this defense routinely.

Documenting the Problem and Giving Notice

Every successful claim depends on proof that the landlord knew about the defect and failed to act. Send a written complaint by certified mail with return receipt, describe the condition specifically, and give a reasonable deadline to fix it. Keep a copy. Save texts and emails as screenshots. A phone call is fine when something is urgent, but always follow up in writing.

Timestamped photographs and video carry real weight in court. So does an inspection. Calling 311 in New York City, or your local code enforcement office elsewhere in the state, creates an official record when an inspector documents violations. Tenants who arrive in court with an inspector’s report and a paper trail of notice tend to win. Tenants who arrive with only their own testimony often do not.

Your Remedies When the Landlord Doesn’t Act

HP Proceedings in Housing Court

In New York City, you can file an HP proceeding in Housing Court asking a judge to order the landlord to make repairs. The filing fee is $45, and you can request a waiver if you can’t afford it. You do not need an attorney. If the court finds violations, it can set a repair timeline and impose civil penalties on the landlord for missing it. A 2023 law increased those penalties, with the heaviest daily fines reserved for immediately hazardous conditions like heat and hot water failures in larger buildings.⁵

Rent Abatement

A rent abatement is a court-ordered reduction in rent covering the period the warranty was breached. You can seek it in a standalone action or as part of an HP proceeding. If your landlord has already sued you for nonpayment, you raise the warranty of habitability as a defense in that case, and the court factors the breach into what you actually owe.

Rent Withholding

Some tenants withhold rent to pressure the landlord. It’s riskier than going to court first, because the landlord can sue for nonpayment. If that happens, you defend on habitability grounds and the judge decides how much, if anything, you owe based on the severity of the conditions. Putting the withheld rent into a separate escrow account signals good faith and lands much better with a judge than spending it.

Repair and Deduct: Handle With Care

New York does not offer an automatic repair-and-deduct procedure. If you hire someone to fix the problem and subtract the cost from your rent, the landlord can sue for the deducted amount and you’ll have to convince a court your actions were reasonable. Keep every receipt and every piece of correspondence if you go this route. An HP proceeding is usually the safer play.

Constructive Eviction

When conditions become truly unlivable, you may be able to claim constructive eviction, end the lease, and escape further rent liability. The requirements are strict. You have to show that the landlord owed a duty (like providing essential utilities or a safe environment), failed that duty, that the failure made the apartment unlivable, that you gave notice and a reasonable chance to fix it, and that you actually moved out within a reasonable time after the landlord failed. Staying put defeats the claim. Courts scrutinize constructive eviction carefully, so document everything before you leave.

How Damages Are Calculated

Park West Management also set the damages formula: the difference between the fair market value of the apartment as warranted (usually measured by the lease rent) and its actual value during the period of the breach. In that case, the court upheld a 10% rent reduction.⁶ The percentage scales with severity. A minor leak might justify a small reduction; a total loss of heat in winter or a severe infestation can support a much larger one. Where an apartment was completely unusable, courts have awarded 100% abatements for the affected period. The statute says courts don’t need expert testimony to fix damages, which keeps the process usable for tenants without lawyers.¹

Protection Against Retaliation

The most common reason tenants stay quiet is fear that the landlord will retaliate. Real Property Law Section 223-b addresses that directly. Landlords cannot retaliate against tenants who make good-faith complaints about habitability to the landlord, the landlord’s agent, or any government authority. The same protection extends to tenants who take legal action under Section 235-b and to those who participate in tenant organization activities. A landlord who retaliates faces a civil action for damages, attorney’s fees, and costs.⁷

The statute also creates a rebuttable presumption of retaliation when the landlord serves a notice to quit, starts eviction proceedings, or substantially alters the tenancy within one year of your protected complaint or legal action. That presumption shifts the burden: the landlord has to prove a legitimate, non-retaliatory reason. Retaliation can also take the form of refusing to renew the lease or offering renewal only with an unreasonable rent hike. If the hostility starts right after your complaint, the timing itself becomes part of your case.⁷

1
New York State Senate. New York Real Property Law 235-B – Warranty of Habitability
2
International Commission of Jurists. Park West Management Corp v Mitchell, 391 NE2d 1288 (NY 1978)
3
NYC Department of Housing Preservation and Development. Heat and Hot Water Information
4
US EPA. Real Estate Disclosures About Potential Lead Hazards
5
New York City Department of Housing Preservation and Development. Penalties and Fees
6
Legal Information Institute. Rent Withholding
7
New York State Senate. New York Real Property Law 223-B – Retaliation by Landlord Against Tenant