What Is the Warranty of Habitability? How It's Different for a Condo or Co-op

In cases where you can no longer live comfortably in the unit, the warranty of habitability may have been breached (iStock).

Every month you break out the checkbook to pay your maintenance fees for your co-op. Naturally you expect that those fees go toward maintaining the upkeep of your residence. But for whatever reason, something goes wrong. It can be an infestation, no heat or running water, mold, or some odd fumes that makes the unit unlivable. In cases where you can no longer live comfortably in the unit, the warranty of habitability may have been breached, and there could repercussions for the board.

The Definition of the Warranty

As stated on the website of the New York State Unified Court System: “The warranty of habitability makes the landlord or owner responsible for keeping your apartment and the building safe and livable at all times...The warranty of habitability also says the landlord or owner must maintain services and conditions that you were told about when you moved in, but that are not required by law.“

“Basically what the warranty of habitability says is whether or not if there is a provision expressly in the lease the courts will imply as a matter of public policy an obligation that any apartment will be safe, habitable, and fit for its intended purpose as a residential dwelling at all times,” says Bruce Cholst, a shareholder at the law firm of Anderson Kill, P.C., in New York City. “The concept behind it is that any apartment that doesn’t meet the guidelines is not keeping up with its bargain and will be in breach of the warranty of habitability.”

Scenarios That Would Apply to the Warranty

Some examples of a breach of the warranty of habitability, according to Cholst, include: no water; an inability to live in a part or all of the apartment; water leaks or floods; no hot water or heat; excessive noise; no electricity; mice/rats/vermin, mold; no gas or gas leaks; odd smells or fumes; and broken door locks.

While these are examples, Cholst says that when it comes to a breach of the warranty of habitability, it’s subjective, “along the lines of ‘you know it when you see it.’ It’s also a question of proof and every judge has a different tolerance level.”

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