The most recent season of The Real Housewives of New York (technically, the reboot) was, like past seasons, not without controversy — on-screen and off. On the show, cast member Erin Lichy had an argument with one of her cast mates about whether Tribeca — a wealthy Manhattan neighborhood — was “up and coming” or not. (Hint: According to Erin, it’s not — it’s already well-established.) Off screen, Erin and her husband, Abraham (Abe) are facing a lawsuit filed by their former landlord, 431-433 Washington LLC, for unpaid rent for their Tribeca apartment.
The landlord filed suit in New York state court, claiming breach of lease, unpaid account and recovery of attorneys’ fees. The lease Erin and Abe entered is attached to the lawsuit, and it lays out the terms of the rental. As with most residential leases, the couple agreed they would pay monthly rent to lease the premises from the landlord, and the landlord agreed, among other things, to ensure the premises was “fit for human habitation” and free of “conditions which will be detrimental to life, health or safety.”
This part of the lease is relevant because Erin and Abe have claimed in response to the lawsuit that the landlord provided rent abatement because they found evidence of rats and other unsanitary conditions in the apartment while living there. Rent concessions — including rent abatement — are not uncommon in New York City, especially in the wake of the Covid-19 pandemic. However, rent concessions are meant to be temporary, unless stated otherwise in writing.
In this case, based on what we can see in public documents, Erin and Abe were afforded a rent abatement due to the apartment’s unsanitary condition, but the abatement only extended for a two-month period covered by the agreement. Once this period expired, though, the tenants were required to resume paying their original monthly rent, unless another rent abatement or rent concession agreement was executed. As far as the documents currently available show, there was no additional abatement agreement.
New York law recognizes the warranty of habitability, however, and Erin and Abe might rely on this to defend themselves in the lawsuit. The warranty of habitability is a right that is expressed or implied in every residential lease and recognizes that tenants have a right to live in a safe and sanitary home. Under New York’s Housing Stability & Tenant Protection Act of 2019, the warranty of habitability now includes a landlord’s duty of repair. This duty of repair requires a landlord to keep a building’s apartments and public areas in good repair, clean, and free from any vermin or rodents. The lease expressly states it is “subject to the provisions of the Warranty of Habitability Law in the form it may have … during this [l]ease.”
The warranty of habitability is Erin and Abe’s best defense based on what we know now, especially since their lease expressly provides for this protection. If pleaded, Erin and Abe can claim that they withheld rent due to the landlord’s failure to resolve the rodent infestation, which affected the health and safety of their family. Of course, according to the Eastern District of New York in G.M.M. v. Kimpson, the landlord’s liability for breach of the warranty of habitability is conditioned upon Erin and Abe’s providing the landlord notice of the defects and giving the landlord a reasonable time to repair those defects. Whether they did so remains to be seen.
If this lawsuit were brought in Texas, the legal arguments would be similar. Basic landlord-tenant law in Texas and New York are comparable — especially since New York’s passage of the Housing Stability & Tenant Protection Act. Like New York, Texas recognizes rent concessions and the warranty of habitability (both express and implied) for residential leases.
However, there is an important distinction in Texas regarding the warranty of habitability. Under section 92.052(a)(2) of the Texas Property Code, a landlord is not required to make a repair even upon a tenant’s request if a tenant is not current on paying rent. So, if this lawsuit were brought in Texas, Erin and Abe would not be able to rely on the warranty of habitability since, according to the landlord, they were behind on rent.
As this case develops, it will be interesting to see whether Erin and Abe followed the proper protocol to bring a defense or counterclaim of breach of the warranty of habitability and/or the lease, and, if so, whether their complaints about their apartment rise to the level of affecting their health and safety or that of their children. If they are able to make these showings, Erin and Abe will have a good likelihood of defeating the landlord’s claims, at least for the portion of the lease period where the unsanitary conditions existed.
Even though the case is still in its infancy, it offers lessons for landlords and tenants. First, the parties should document the condition of the space before and after the tenant takes possession. Taking pictures and videos, making sure they are dated or stored in a place reflecting the date they were taken and keeping a written record of the conditions as observed will help to reduce factual disputes later. Additionally, both parties should be sure to comply with applicable notice provisions. Much of the time, the lease will contain specific notice provisions that both parties must comply with to bring issues to the other party’s attention. Both parties should also ensure no statute or other law requires further or particular notice. Finally, as with most documents related to real estate, it is important to get any rent abatements, rent concessions or amendments to the lease in writing and signed by landlord and tenant.
You can keep up with the status of this case yourself by clicking here, clicking “Search as Guest,” and entering Index No. 650012/2024. We look forward to keeping up with Erin and Abe’s lawsuit journey and to seeing them on the next season of RHONY.
Catherine B. Baldo is an associate and Troy “T.J.” Hales is a senior associate at Bell Nunnally. They can be reached at cbaldo@bellnunnally.com and thales@bellnunnally.com.