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Constructive Eviction in New York

New York law requires tenants to follow a strict procedure for constructive eviction, including depositing a month's rent with the court.

If a rental has become unlivable, tenants can use the legal concept of constructive eviction to break their lease without penalties. All states have some version of constructive eviction, but the specific situations in which it’s allowed—and the process by which it must happen—vary. In New York, a tenant doesn't have the right to simply stop paying rent, leave their rental unit, and claim constructive eviction. They must follow a strict process that includes depositing a month of rent with the court.

Only certain issues justify constructive eviction

To successfully claim constructive eviction, the issue with the rental unit must be a breach of something called the implied warranty of habitability. Renters in New York have successfully used the constructive eviction defense for issues such as failure to supply hot water1 and rain leaking through a skylight.2

However, courts didn’t consider constructive eviction an appropriate response in one case where a health inspector said a leaking pipe was “potentially dangerous”3—or another in which tenants complained of prostitution in the building.4

New York has a well-defined process for constructive eviction

New York law establishes a strict procedure that must be followed before a claim for constructive eviction can be made and upheld:5

  1. The tenant must inform their landlord of the issue with the rental and given them a reasonable amount of time to fix it.
  2. Assuming the landlord still hasn't made the repair, the tenant must then inform their local housing authority of the issue that's making the unit unlivable. The housing authority will issue a notice to the landlord or renting agency.
  3. The tenant must vacate their apartment, since New York tenants can't claim constructive eviction if they remain in the residence.6
  4. The tenant must deposit one month’s rent with the clerk of their local housing court.

After these conditions are met, the landlord will then have a reasonable opportunity to repair the problems. If the repairs are made, the landlord will receive the deposit back, and the tenant must return to the premises and start paying rent again. If the landlord still doesn’t make the necessary repairs, the rent will be held by the court until the repairs are made. If the issues are never resolved, the money will eventually be returned to the renter and they will be freed from the obligations of their lease.

Courts decide how to divide the deposited rent

According to New York courts, the primary purpose of constructive eviction laws are “to force landlords to comply with applicable housing laws,” not to reimburse renters for the inconveniences they've gone through.7 Once the problem is resolved, the funds deposited with the court are typically returned to the landlord.

However, a tenant can attempt to claim some of the funds based on the damages they suffered because of the breach of the warranty. Generally, courts try to make a fair and equitable distribution so that neither the renter nor the landlord enriches themselves.8

Tenants should consult a lawyer before using constructive eviction

The laws governing constructive eviction are quite complicated, and renters can easily lose their rights if the proper procedures aren't followed. Also, New York State has several other cities large enough to have their own local ordinances (including, of course, New York City). So it's a good idea to contact a lawyer before proceeding with constructive eviction claims. Most cities have a Legal Aid society that can provide free legal assistance on these matters.

[1] Pantalis v. Archer

[2] DeKoven v. 780 West End Realty Co.

[3] Buddwest & Saxony Properties, Inc. v. Layton

[4] DeKoven v. 780 West End Realty Co.

[5] New York Consolidated Code Section 755

[6] Barash v. Pennsylvania Terminal Real Estate Corp

[7] 176 E. 123rd St. Corp. v. Flores

[8] B.L.H. Realty Corp. v. Cruz

The information provided on this website does not, and is not intended to, constitute legal advice.