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The Court is comfortable that the record presented supports the finding


In this case, the petitioner (hereafter “the landlord”) is the owner of the residential real property premises. The landlord owns nineteen separate residential rental houses and now operates twelve rental units as boarding houses for United States Veterans. In these houses each tenant leases a single bedroom and shares common areas of the house with numerous other veteran/tenants. The parties to this action executed a one year written lease wherein respondent was granted occupancy of a bedroom. The cost to the tenant was $500 per month. The lease contains a rider which refers to “house rules” which govern tenants behavior and which prohibits their alcohol and non-prescription drug use. The subject premises was occupied by at least five veterans in June of 2006.

A Suffolk County Burglary attorney said that though only two such veterans testified in the context of this trial, the Court is cognizant of three other veterans who were recently dispossessed from the subject premises following their entry into stipulations filed with this Court, in other eviction proceedings instituted by petitioner. Contrary to paragraph #’s 6 and 53 of the lease, the petitioner did not pay the water bill at the premises which resulted in an interruption of service. The veteran tenants of the facility thereafter had to place the water utility in their name and pay the charges for same. The electric utilities were in the landlord’s name when the respondent took occupancy. The initial practice between the parties was for each tenant to pay his proportionate electric bill share to the landlord in cash, who would then pay the bill to the electric authority. No arson or domestic violence was involved.

In February 2006, the landlord refused to pay the electric bill and said utility was turned off. Several days thereafter, the electricity was restored after a local charity paid the bill for the veterans. It is a disputed fact as to whether the respondent/veterans paid the $800 electric bill in cash to the landlord. A large menacing man moved into an accessory structure on the lease premises in May 2006. He engaged in open crack cocaine use and in harassing and menacing behavior towards the veterans which resulted in the police being called on at least four occasions by the respondent and other veterans. It is disputed as to whether this man had the permission of the landlord to reside on the premises. The landlord averred at trial that he was a trespasser.

The respondent complained to the landlord about the menacing man’s criminal activities including his proclivity to shower naked using the hose in the garden and his disposal of fecal waste in the garbage pails stored near the tenants ‘ window. The respondent was advised by the landlord that he would not be returning from the Hamptons for the summer and that the veterans should address the situation themselves by contacting the police.

The police refused to remove the menacing man as a trespasser as he told them he had the owner’s brother permission to stay, and possibly also because he served as a neighborhood informant for gang related activity. After the initial dispute between the respondent and the menacing man, the outside door to the house was removed by an unknown person and there was burglary in respondent’s room. After this time the respondent resorted to carrying a firearm and needed an upward adjustment in his anxiety medicine. The respondent suffers from post traumatic stress disorder.

The landlord demolished the shed and the man vacated the premises. The respondent has not formally paid rent for the several months. It is a disputed fact as to whether the respondent paid June’s rent to the landlord with $500 of casino gambling chips in Atlantic City and rent via an agreement for the landlord to apply his security deposit.

The Court of Appeals comprehensively reviewed the scope of New York Real Property Law Sec. 235(b)1 2 and opined that it effectively changed the pre 1975 Common Law standard, which held that a lease was only a conveyance of possession of real property to the concept that it is now “a sale of shelter and services.” Emphasis added. In this decision, the high Court determined that this statutorily created implied warranty was comprised of three independent criteria.

By entering into any lease for residential premises, the landlord is deemed to have covenanted and warranted the following three things: First, “that the premises are fit for human habitation; second; that the condition of the premises is in accord with the use reasonably intended by the parties; and third, that the tenants are not subject to any conditions endangering or detrimental to their life, health and safety.” Violation of any one of the criteria constitutes a breach of the warranty of habitability.

The statutory warranty has been extensively construed as it relates to the (first criteria) “fit for human habitation” and (third criteria) “no conditions dangerous to life, health and safety.” There exists no definitive list of conditions which violate the warranty of habitability. Conditions which various Courts have found violative of the warranty of habitability are: noxious fumes, excessive odors, light or noise, second hand smoke, excessive dirt and debris in common areas, taking inadequate action to remedy situation of menacing co-tenants, failure to adequately protect their safety, water leaks and the failure to provide adequate security to the tenant. Utilizing Sec. 235 (b)’s first and third component case law and applying it to the facts at hand, it is clear that though the tenant would be entitled to a percentage abatement for the conditions he suffered, he would be evicted in this action as the “fit for habitation” and “dangerous to life” conditions were effectively cured after the menacing man left and no subsequent rent was paid.

However, the crux of this case involves the less frequently implicated second criteria which calls for an examination of whether “the condition of the premises is in accord with the use reasonably intended by the parties.” The warranty of habitability is a broadly interpreted statute which requires the Court to consider the “bargain struck by the landlord/tenant” when evaluating a second prong breach of the warranty. The Court is granted wide latitude in examining the totality of the facts which constitute such a violation. In construing the “intention of the parties” the Court must weigh the significance of the bargained for service which was not provided.

The Court is comfortable that the record presented supports the finding that the use intended by the parties was that of a group boarding home and that this use was a significant term of their lease bargain. It is undisputed that the landlord had an informal arrangement with the local Hospital that it refer displaced veterans to the landlord for residential placement. It is reasonable for the Court to infer that a landlord who operates 12 such facilities would be on notice that many of his displaced veteran tenants suffer with serious problems and disabilities, and that an affirmative level of interaction and or supervision would be necessary to maintain an acceptable level of practical co-existence amongst unrelated individuals on the property. Unlike a single family resident who may wish to only interact with the landlord on rent collection day, it is reasonable to assume all the parties to this lease would anticipate that the proprietor of a displaced veteran’s boarding house would have a significant daily presence on the premises and would be available to enforce communal living rules and resolve related disputes. Clearly, the landlord’s admitted removal of himself to the Hamptons for the summer, his failure to have any personal mental health training or to install alternative management arrangements is not in congruence with the “group home” condition which was intended by the parties. In this instance, a reasonable tenant in the respondent’s position would expect that the landlord would maintain an on site presence to regulate the conduct occurring in the common area of the boarding house and to enforce the “house rules” stated in the lease.

An on site presence would also have allowed the landlord to meet his lease obligation of providing water/sewage service at the landlord’s expense. A management presence would also have prevented the termination of electrical service. The landlord’s assertion that the tenant was responsible for electrical payment is not justifiable in this instance inasmuch as under the lease each boarding room tenant is responsible to the landlord for his proportionate share of the bill only, not the entirety of the house bill. It is the landlord who bears the administrative burden of paying the bill to the utility up front and insuring uninterrupted provision of essential services. The tenant’s responsibility is to pay his proportionate share only, as part of his financial obligation to the landlord.

Though not expressly stated in the lease, landlords have been found to have implicitly assumed a duty to provide security by doing something so simple as installing a common lock system in a multiple dwelling unit. Landlords with notice of crime related security breaches in a multi unit building assume an affirmative duty to provide security services and asserting the proposition that a landlord who is on notice of crime related security breaches has an obligation under Sec. 235(b) to protect his tenants with a secure door. In a defacto multiple dwelling, an assumed duty extends to common areas and ancillary structures.

The notion of leaving emotionally vulnerable tenants to their own resort, instructing them to after being informed of menacing man’s harassing behavior, is inconsistent with a boarding house environment. Even without a bargained for duty, case law requires a landlord to protect tenants from being bullied and harassed by other drug dealing tenants. Boiled down to its most basic denominator, the landlord’s voluntary and virtually complete absence, his failure to correct the lack of security arising from the missing front door, his failure to have the police or otherwise remove the menacing man. a known drug using trespasser according to the landlord, the landlord’s pattern of withholding promised essential services electricity, water were all inconsistent with any reasonable expectation arising out of the parties’ boarding house lease agreement, and represent a violation of the second prong of the warranty of habitability.

Accordingly, the Court dismissed the petition.

For a competent and intelligent advice, write or call us here in Stephen Bilkis and Associates. Our Suffolk County Criminal attorneys are always ready and willing to help you in your dilemmas. For drug related cases, don’t hesitate to contact our Suffolk County Drug Possession lawyers who will let you know your rights during and after the arrest of the accused up to the pendency of the proceedings. Call us now, we will be glad in helping you in your predicaments.

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