Copyright by, and republished with permission of, Apartment Law Insider.
When landlords take tenants to court over nonpayment of rent, tenants often claim as a defense that the landlord breached the warranty of habitability. But, as a recent case illustrates, a tenant may preemptively claim such a breach before a landlord acts to evict—and argue not only that that the breach was aggravated by the pandemic, but that it amounted to harassment for which the tenant should be awarded a civil penalty.
In evaluating the merits of the breach of warranty claim, the court in this case considered the inconvenience to the tenant due to the pandemic as an aggravating factor. And then it conducted a detailed analysis in determining whether a civil penalty was in order.
Noise, Odor, and No Hot Water
Jacqueline Avignone sued her landlords Stephen and Jacqueline Valigorski in the City Court of Cohoes for breaching the implied warranty of habitability because they refused to remediate loud noises and a malodorous smell and to provide hot water and adequate water pressure. The tenant also demanded the award of a civil penalty. The landlords made a counterclaim for the nonpayment of rent.
The tenant rented a newly refurbished second-floor apartment from the landlords. She moved in on April 1, 2020—and things got off to a rocky start. The apartment below hers was being renovated to make it ready to rent. She complained to the landlords that the volume of the noise and the time of day that work occurred (both at night and early morning) infringed on her ability to enjoy peace and quiet in her apartment.
At this point, the parties’ accounts diverged. The landlords testified that they made every effort to accommodate the tenant’s concern. In particular, they promised her that only quiet activity, like painting and taping, would occur during the morning and in the evening. They said that they kept this promise. The tenant had a markedly different version of events. She testified that the landlords bluntly told her that work would continue as normal and that if she didn’t like the noise she could leave.
Court Sides with Landlords on Noise Complaint
The court resolved the conflicting testimony. It seemed unlikely to the court that the landlords would issue an ultimatum to deal with a problem that arose so early in the lease and at a time when they were just establishing their new apartment building in the community. Indeed, the court credited the landlords’ testimony that they altered the work schedule to accommodate the tenant. Moreover, given her description of the sound, it was surprising that the tenant failed to produce an audio recording of the disrupting racket. Thus, the court found that the landlord didn’t create noises that interfered with the tenant’s repose.
City Investigates Odor Complaint
A second problem arose at the same time as the noise issue—an abrasive odor. The tenant claimed that the odor forced her to stop using her bedroom. She complained to the landlords, who went to the apartment but detected no smell.
The tenant then retained a professional to help her find the cause of the odor. But according to the professional’s letter, he never went to the apartment; rather, he based his analysis on the tenant’s description—that that the malodor was intermittent—sometimes overwhelming and other times nonexistent. He noted that the source of the scent could be from the house or from a completely different location. He presented several alternative hypotheses, but without a formal investigation neither the source nor the cause of the odor could be established.
In July, the tenant complained about the foul smell to the Cohoes City Code Department. The responding code enforcement officer, though citing the landlords for a water violation, made no independent finding of any odor. Since neither the tenant’s own expert nor the code officer pinned the blame for the mysterious odor on the landlords, the court would not do so. And because the source of the irritating stink wasn’t proven, neither was the tenant’s case. The court wouldn’t order a rent abatement based on the allegation that the landlords failed to remediate an odor.
Water Problems Start After Tenant Withholds Rent
The court next addressed the issues related to water pressure and temperature. In the beginning of July, the tenant informed the landlords that, in light of the noise and the odor, she would be withholding rent until her complaints were resolved. After that, the water pressure in her apartment dropped, the water wouldn’t get hot, and her laundry machine would no longer fill up. So, the tenant contacted the Cohoes City Code Department, and a code officer investigated the situation. The officer found that the landlords had violated both the City Code and the New York State Code with respect to water temperature and pressure. The landlords were cited and ordered to make repairs.
In August, the tenant still hadn’t paid rent. Coincidently, water problems cropped up again. She once more called the code department. And once more, upon investigation, the code officer found that the landlords were failing to comply with the requirements of water temperature and pressure. This time, the code officer filed a criminal complaint charging the landlords with providing their tenant with inadequate water supply including inadequate hot water.
Court Finds Breach of Lease
A landlord who fails to provide hot water violates Real Property Law §235-b, concerning the warranty of habitability. The failure to provide adequate water pressure violates the statute as well. The latter breach becomes more compelling during a pandemic. In this case, the tenant’s lack of water pressure translated directly to the inability to wash her clothes. Keeping clothes clean helps prevent the transmission of the coronavirus. Moreover, since the low water pressure forced her to go to a public laundromat to wash her clothing, the tenant was subjected to an increased risk of getting sick. Thus, because the landlords breached the implied warranty of habitability, they breached the lease.
Having found a breach of the lease, the court had to determine damages, which is challenging in warranty of habitability cases. The proper measure of damages is the difference between the rent (in this case, $975 per month) and the value of the premises during the period of the breach. And, in ascertaining damages, the court was required to weigh the severity of the violation and the duration of the conditions giving rise to the breach, as well as the effectiveness of steps taken by the landlord to abate those conditions. The court awarded the tenant $300 for the month of July and $600 for the month of August as damages under RPL §235-b.
Did Breach Amount to Harassment?
The tenant also invoked Real Property Actions and Proceedings Law §768 and asked the court to award her a civil penalty for the violation. Enacted by the legislature in 2019 as part of the Housing Stability and Tenant Protection Act, a violation of RPAPL §768 subjects the violator to both civil and criminal penalties. Section 768 provides that:
The court addressed two questions. The first was whether the landlords violated RPAPL §768. Here, in the court’s opinion, was what happened: The landlords were frustrated by the tenant’s phantom complaints along with her nonpayment of rent. Initially, they sought to resolve this grievance properly—they filed a nonpayment proceeding to evict her. However, pursuant to a flood of ever-changing Executive and Administrative Orders that constantly altered eviction proceedings, the landlords weren’t able to adjudicate their case. Without a prompt judicial remedy, the landlords became understandably frustrated. So, they resorted to tactics that made living in the apartment unpleasant for the tenant in an effort to get her to leave.
Thus, based upon the evidence and reasonable inferences, the court concluded that the landlord intended to interfere with the tenant’s enjoyment of her apartment to induce her to vacate it by tampering with the water, an essential service, in violation of RPAPL §768[a].
Could Court Award Tenant a Civil Penalty?
The next question, and the one upon which the case hinged, was whether the court, in a private civil action, could award a plaintiff a civil penalty under RPAPL §768[b]. Here, the statutory language was silent. It wasn’t just that the legislature never mentioned whether RPAPL §768’s civil penalty could be enforced by a private lawsuit; rather, it didn’t identify any entity that has civil enforcement power. In the face of that silence, the court took a cautious approach—neither to be too restrictive nor too liberal in its statutory interpretation. To do this, the court looked at three factors: the law involving implied private causes of action, the purpose of a statutory penalty, and the separation of powers doctrine.
A private cause of action exists only if the legislature intended to create one. And courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute. Considering the statutory silence, the court doubted that RPAPL §768 created a private cause of action. And, where a statute creates criminal liability, as RPAPL §768[a] does, then, generally, no private cause of action may be implied.
Additionally, a private statutory cause of action is designed to compensate while a statutory penalty is designed to punish. Imposition of a penalty is a powerful tool. A court should hesitate before allowing it to be wielded by those who are focused upon their private interests and not the public’s. Indeed, the availability of civil penalties that are vastly disproportionate to the individual injury, as was the case here, would give citizen plaintiffs massive bargaining power, by allowing public fines to be leveraged for their private interest. Without an express statutory transfer of governmental power from democratically accountable officials to private parties, the court would not infer one.
And, even if the court construed RPAPL §768 to mean that the legislature delegated to a private party the power to punish a landlord, such a construction would raise a separation of powers issue. While the legislature has the power to define a penalty and the court has the power to judge the severity of the penalty, neither branch may compel the executive to enforce a penalty nor delegate that authority to another.
In light of the law governing implied private causes of action, the purpose a civil penalty and constitutional concerns, the court held that—while the landlords violated RPAPL §768—the court could not, in the context of a private civil action, enforce the statute’s civil penalty provision under RPAPL §768[b].
The landlords counterclaimed for unpaid rent. The tenant admitted not paying rent from July through November. Five months’ rent at $975 a month amounted to $4,875. The amount of rent owed was reduced by the $900 award for the breach of the warranty of habitability. Therefore, the court awarded judgment to the landlords on their counterclaim in the amount of $3,975.
- Avignone v. Valigorski: 2020 NY Slip Op 20336, 12/12/20