"There were buildings where tenants were left in unsafe conditions," she said, sometimes with no lights in building hallways. Some apartments were affected by burst pipes or mold. But while those cases may involve breaches of the warranty of habitability, she said, they are too fact-specific and not clear-cut enough for class action treatment.
Real estate attorney Adam Leitman Bailey, who is handling several landlord-tenant cases, said the hardest-fought suits will arise when there is ambiguity about whether apartments are habitable.
"If you couldn't move in, you get 100 percent rent abatement," he said. "That's a given. No one's arguing that. No landlord in the city's fighting that."
Contentious issues, he said, arise when an apartment is partly usable—for example, if there is heat but no cooking gas.
Warren Estis of Rosenberg & Estis, who represents both landlords and tenants, shared a similar view.
"The fact that certain areas became inaccessible doesn't automatically mean that the tenant would be entitled to an abatement," he said. "You have that gray area where the tenant doesn't want to be inconvenienced whatsoever. That's where you're going to find the fine line."
"They're not getting the same apartment back," Howard said of such cases. "So even to the extent that the landlord has made the repairs, it's not the same paint color, or it's different carpet, or no carpet."
"You can see the unique circumstance, where, if anything, it's going to fall in the gray area—it's possible the building could be occupied, but the people decided not to go in that direction," Estis added.
Commercial Leases
Murkier issues arise from damage to commercial property, since commercial tenants enjoy far less statutory protection than residential tenants.
"For residential landlords, the landlord's always responsible. For commercial, you have to go to the lease," Bailey said.
Most commercial leases, he said, do not entitle the tenant to a rent abatement in case of property damage.
However, Bailey said, commercial tenants may be able to argue that the damage to their space, if not repaired, constitutes constructive eviction.
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John A. Viteritti
Very informative.
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