# Construction = Breach of Warranty of Habitability? **URL:** \ **Category:** In My Humble Opinion\ **Created:** [May 4, 2011, 3:54am UTC](https://boards.straightdope.com/t/construction-breach-of-warranty-of-habitability/580659 "2011-05-04T03:54:50Z")\ **Posts on this page:** 6\ **Page:** 1
**Author:** ![Anchuldigs](https://avatars.discourse-cdn.com/v4/letter/a/ed8c4c/32.png) [@Anchuldigs](https://boards.straightdope.com/u/Anchuldigs)\ **Post date:** [May 4, 2011, 3:54am UTC](https://boards.straightdope.com/t/construction-breach-of-warranty-of-habitability/580659/1 "2011-05-04T03:54:50Z")
I live in a large apartment building in New York City and my landlord has begun renovations (required by law) of the building’s terraces. The work is extremely noisy, to the point that I cannot stay in my apartment from 8:30am to 5pm every day. And it’s not just me - the entire building is complaining about it. The work will continue into July and August. I have a 10 day old baby at home and I need to study for finals. To get out of my lease can I make the argument that the noise/vibrating is a breach of the implied warranty of habitability? Any other way I can get out of my lease? Thanks! ---
**Author:** ![Broomstick](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/broomstick/32/246_2.png) [@Broomstick](https://boards.straightdope.com/u/Broomstick)\ **Post date:** [May 4, 2011, 3:59am UTC](https://boards.straightdope.com/t/construction-breach-of-warranty-of-habitability/580659/2 "2011-05-04T03:59:41Z")
If the repairs are required by law I’m not sure you have a recourse, but I am not a lawyer. I suppose you could _ask politely_ to get out of the lease after explaining the situation to the landlord. Sometimes people are reasonable. But if the repairs are mandatory I don’t see what else can be done. If he waits until your finals are over and your baby is older then some other person will be inconvenienced, so that’s no solution, either. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [May 4, 2011, 4:10am UTC](https://boards.straightdope.com/t/construction-breach-of-warranty-of-habitability/580659/3 "2011-05-04T04:10:03Z")
> [@Broomstick](#): > > If the repairs are required by law I’m not sure you have a recourse, but I am not a lawyer. > > I suppose you could _ask politely_ to get out of the lease after explaining the situation to the landlord. Sometimes people are reasonable. But if the repairs are mandatory I don’t see what else can be done. If he waits until your finals are over and your baby is older then some other person will be inconvenienced, so that’s no solution, either. Sure you can. The question is going to come down to what is habitable. Here is the Attorney General’s information about warranty of habitability: > [@](#): > > WARRANTY OF HABITABILITY > > Under the warranty of habitability, tenants have the right to a livable, safe and sanitary apartment. This is a right that is implied in every written or oral residential lease. Any lease provision that waives this right is contrary to public policy and is therefore void. Examples of a breach of this warranty include the failure to provide heat or hot water on a regular basis, or the failure to rid an apartment of an insect infestation. Public areas of the building are also covered by the warranty of habitability. The warranty of habitability also applies to co- operative apartments, but not to condominiums. Any uninhabitable condition caused by the tenant or persons under the tenant’s direction or control does not constitute a breach of the warranty of habitability. In such a case, it is the responsibility of the tenant to remedy the condition. Real Property Law §235-b. > > If a landlord breaches the warranty of habitability, the tenant may sue for a rent reduction. Alternatively, rent regulated tenants can also file a rent reduction complaint with DHCR. The tenant may also withhold rent, but in response, the landlord may sue the tenant for non-payment of rent. In such case, the tenant may countersue for breach of the warranty. > > The court or DHCR may grant a rent reduction if it finds that the landlord violated the warranty of habitability. The reduction is computed by subtracting from the actual rent the estimated value of the apartment without the essential services. For a tenant to receive a reduction, the landlord must have actual or constructive notice of the existence of the defective condition. > > A landlord’s liability for damages is limited when the failure to provide services is the result of a union-wide building workers’ strike. However, a court may award damages to a tenant equal to a share of the landlord’s net savings because of the strike. Landlords will be liable for lack of services caused by a strike when they have not made a good faith attempt, where practicable, to provide services. > > In extenuating circumstances, tenants may make necessary repairs and deduct reasonable repair costs from the rent. For example, when a landlord has been notified that a door lock is broken and willfully neglects to repair it, the tenant may hire a locksmith and deduct the cost from the rent. Tenants should keep receipts for such repairs. > > If an apartment is so severely damaged by fire or other circumstances not caused by the tenant that the apartment becomes uninhabitable, and the lease does not expressly provide otherwise, the tenant may vacate the apartment and cancel the lease on three days’ notice to the landlord. The tenant will be released from liability for subsequent rental payments. Real Property Law § 227. > > If only a portion of the apartment is damaged, the rent may be reduced pursuant to a court order or by DHCR in proportion to the part of the apartment that is damaged. The landlord must then repair those portions of the apartment and return them to livable condition. [http://tenant.net/Rights/attygentenantsguide2008.html#13](http://tenant.net/Rights/attygentenantsguide2008.html#13) Don’t see anything about noise there, and I really doubt you have much of a case. I am not a lawyer, but I think the noise level would have to reach the level of a health hazard to get any legal relief. ETA: Check your lease to see if there are any guarantees in addition to the legal minimum. ---
**Author:** ![Anchuldigs](https://avatars.discourse-cdn.com/v4/letter/a/ed8c4c/32.png) [@Anchuldigs](https://boards.straightdope.com/u/Anchuldigs)\ **Post date:** [May 4, 2011, 5:10am UTC](https://boards.straightdope.com/t/construction-breach-of-warranty-of-habitability/580659/4 "2011-05-04T05:10:25Z")
I don’t think the noise would need to reach the level of being a health hazard. I believe the standard is: in eyes of reasonable person, defects in dwelling deprive tenant of those essential functions which a residence is expected to provide, a breach of landlord’s implied warrant of habitability has occurred.  Park West Management Corp. v. Mitchell, 1979, 47 N.Y.2d 316 i.e. that it should be habitable. For myself, and my neighbor, the noise is so disturbing that I cannot stay in my apartment during the day. So I guess my questions are: Does it matter that the renovations will only go through July (a short period of time)? Does it matter that the renovations are required by law? Do you think a Housing Court Judge (generally tenant friendly) will buy the Breach of Warranty argument for excessive noise? ---
**Author:** ![Zebra](https://avatars.discourse-cdn.com/v4/letter/z/c0e974/32.png) [@Zebra](https://boards.straightdope.com/u/Zebra)\ **Post date:** [May 4, 2011, 7:04am UTC](https://boards.straightdope.com/t/construction-breach-of-warranty-of-habitability/580659/5 "2011-05-04T07:04:31Z")
Humm… I don’t suppose you can get a decibel meter and take some readings? Do you have another place to move into? ---
**Author:** ![pbbth](https://avatars.discourse-cdn.com/v4/letter/p/f9ae1b/32.png) [@pbbth](https://boards.straightdope.com/u/pbbth)\ **Post date:** [May 4, 2011, 3:02pm UTC](https://boards.straightdope.com/t/construction-breach-of-warranty-of-habitability/580659/6 "2011-05-04T15:02:31Z")
> [@Anchuldigs](#): > > I don’t think the noise would need to reach the level of being a health hazard. I believe the standard is: in eyes of reasonable person, defects in dwelling deprive tenant of those essential functions which a residence is expected to provide, a breach of landlord’s implied warrant of habitability has occurred.  Park West Management Corp. v. Mitchell, 1979, 47 N.Y.2d 316 i.e. that it should be habitable. > > For myself, and my neighbor, the noise is so disturbing that I cannot stay in my apartment during the day. So I guess my questions are: Does it matter that the renovations will only go through July (a short period of time)? Does it matter that the renovations are required by law? Do you think a Housing Court Judge (generally tenant friendly) will buy the Breach of Warranty argument for excessive noise? No, you probably won’t be able to leave based on warranty of habitability. I was in an apartment with floor to ceiling black mold, constant flooding, mosquito infestations, and one very memorable ceiling collapse that actually landed on my head and we weren’t allowed to leave. After taking the landlord to court they gave him 25 days (IIRC) to repair everything and at that point he just let us out of our lease because it was cheaper than actually fixing stuff, but if the city wouldn’t let us out of our lease for things that were really, truly making the place dangerous and uninhabitable you are probably not going to get out based on noise violations. If you just can’t handle it I would ask friends and family if you can be at their place during the day for the next couple of months or explain to the landlord about the baby and ask if they would put you up in another building somewhere for the duration of the construction.