Friend was evacuated because of Hurricane Sandy. She still is not back in her apt. No power, heat and water damage. Landlord is calling her looking for Nov rent. She was evacuated before Nov 1. Her and her family are living with more family for 2 weeks now because of hurricane. What is her obligation to paying Nov rent if she cant go back to apt in Nov......thank you
Real Estate Attorney
No - rent should be abated for period that it is uninhabitable.
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I agree with Mr. Chertock - the rent should be abated for the period when you could not occupy the property.
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Landlord / Tenant Lawyer
Dear does she have to pay rent?
Amazingly, New York law does not offer tenants a handy check list when they may be allowed to avoid paying rent. Instead, New York offers a statute that mandates that landlords maintain residential dwellings in habitable conditions, and which allows a tenant to "defend" against a landlord claiming rent that the landlord breached the statutory warranty of habitability. What that means is that the tenant has the right to defend her decision not to pay rent to the landlord by proving when the landlord demanded the rent she did not pay, that her home was not inhabitable. New York law forces every one of these decisions into a court case. That is the landlord must decide to sue for the rent when the home is not inhabitable and if the landlord does not sue, the tenant does not need to "defend" her decision not to pay the rent. Or if the landlord decides to sue for the rent knowing that the tenant did not pay because the home was not inhabitable, the tenant must affirmatively defend her decision not to pay.
That brings into play all the requirements of the statute including notice to the landlord of the conditions of disrepair that make the home not inhabitable, and that means written notice to the landlord with proper proof that the notice was mailed (usually meaning regular mail with a certificate of mailing, unless the lease requires another method such as by certified mail with a request for a return receipt.) The tenant should keep for her records a duplicate original or a true copy of the letter signed by her that she mailed to the landlord.
A tenant displaced like your friend could also claim a constructive eviction if she has a current lease, but again, no defense to a landlord's rent claim in New York is automatic and the tenant must prove the defense to prevail if sued for the rent by the landlord.
Right now her wisest strategy would involve hiring a lawyer right now to advocate on her behalf to the landlord why the conditions in the home constitute a full breach of the warranty of habitability and the reasons her or his client is not about to pay rent to the landlord.
The answer provided to you is in the nature of general information. The general proposition being that you should try to avoid a bad outcome if you can.