Many states have established a tenant’s right to something known as “repair and deduct”—that is, they can repair a serious issue with their rental and subtract the cost from their rent if their landlord has failed to fix it. While New York statutes don’t explicitly allow repair and deduct, a number of court cases recognize that tenants are, in many situations, entitled to do exactly that. The key for tenants is to understand exactly what issues are serious enough to warrant repair and deduct, keep records, and always be prepared for a future court case.
Not every issue with a rental qualifies for repair and deduct
All landlords in New York have a legal duty to keep a tenant’s apartment in livable condition, a guarantee that’s also known as the “implied warranty of habitability.”1 If the warranty has been breached—and a landlord fails to fix the problem—then New York allows tenants to fix the conditions themselves and deduct the cost from their rent.2
But what counts as a breach in New York? While this is generally a complicated question, there are at least a few easy examples:
- A landlord who does not provide a garbage disposal system building-wide, or who allows rodent and roach infestations3
- A broken toilet4
- Mold and a leaky ceiling5
A failure to paint walls that need painting6
On the other hand, excessive dog hair in a common area may be annoying, but it is not a breach of the warranty of habitability.7
This is obviously not an exclusive list. Generally, however, a tenant has the right to live in an apartment without leaks or pest infestations and with a lock on the front door, working heat and hot water, and walls that are painted and not peeling. If a rental doesn’t have one of these features, it's a safe bet that a tenant has the right to repair and deduct.
Landlord have a “reasonable” amount of time to make a repair
It’s crucial for New York tenants to inform their landlord of any conditions that need repairs, before using repair and deduct. They also must give their landlord a reasonable amount of time to make a repair. If a tenant fails to give their landlord a reasonable amount of time to make a repair—or to notify them of the issue in the first place—they will lose the right to repair and deduct, even if the issue was a breach of the warranty.8
Of course, what’s “reasonable” varies depending on the situation—in a case from 1981, for instance, a tenant’s apartment was robbed and both locks were broken. When she contacted the superintendent of the building, he said it would take two or three days to find new locks (nor did he explicitly promise to make the repair at all). She contacted a locksmith on her own and had the locks replaced the next day. The courts determined she’d given the landlord “ample and reasonable opportunity to make the repairs” and allowed her to deduct the cost of the lock from her rent.9 In another case, a judge decided that taking three weeks to fix a "mild" lead hazard in the bathroom was reasonable.10
Repair costs aren’t capped, but must be “reasonable”
Although New York doesn’t set a specific cap on how much a tenant can deduct for a repair, the courts require that the cost be reasonable. In one court case, a tenant deducted the equivalent of two months of rent to fix a persistent smell of cat urine—a sum that the courts determined was “excessive in comparison with the rent.” (The odor was considered a breach of the warranty of habitability, however.)11
Tenants should keep a record of the entire process
Although not required by law, it’s a good idea for a tenant to keep a record of all complaints to their landlord in case the landlord ends up suing over unpaid rent. Tenants should also specifically inform a landlord that they intend to make repairs and deduct the cost from rent if the landlord fails to fix the problem within a reasonable time. When a tenant finally deducts the cost of repairs from a rent payment, they should send their landlord copies of any receipts, invoices, or bills related to the repair work.
The information provided on this website does not, and is not intended to, constitute legal advice.