April, 2009

SECOND HAND SMOKE AND THE WARRANTY OF HABITABILITY

Many of you have suffered from second hand smoke in restaurants, offices, and other public areas. How about second hand smoke in your own apartment? It is not an infrequent situation that neighbors’ heavy smoking passes right through the walls into your apartment. Another obnoxious situation may be when your neighbor’s smoking emanates through his entry door into the hallways of your building. When you pass the smokers’ door, you get unhealthy second hand smoke inhalation. Persons I know, and I myself, have suffered from the above described conditions. What to do?

Under Real Property Law Section 235-b all tenants of residential property are protected by the warranty of habitability. Courts have found that second hand smoke can be a breach of the warranty of habitability. Complaints to your landlord will be the first means to remedy the situation. If that fails, complaints can be made to the City. If the landlord fails to take any action to remedy the hazardous condition resulting from second hand smoke, the landlord may be liable for breach of the warranty of habitability. Practically speaking, there may be many simple cures to the problem, such as caulking/plugging holes behind bathroom vanities, under kitchen sinks, near electrical outlets, or simply having the smoking tenant open his or her window while smoking. I have read about situations where buildings have completely outlawed smoking, requiring residents of residential units to actually leave their apartments and go outside to smoke. This result seems somewhat drastic. However, if smoking tenants cannot make sure that their smoking does not offend and harm others, then this drastic result would seem appropriate.

newsletter_0309

Feel free to contact David A. Kaminsky, Esq. with any questions about second hand smoke.

SECURITY DEPOSITS — AM I REALLY ENTITLED TO INTEREST

One of the mantras of apartment dwelling tenants has been “I want my interest on my security deposit!!” The myth is that tenants are always entitled to receive interest on their security deposits. While this is generally true, it is not at all an absolute and there are certain qualifications that may arise that will prevent a tenant from receiving interest on his security deposit.

In commercial leasing, interest on security deposit is purely a matter of language in the lease. Rarely does a commercial tenant have the right pursuant to the lease to receive interest on a security deposit. In a residential situation, the General Obligations law provides the rules and states that a security deposit shall not be commingled with the personal monies or become an asset of the person receiving same. Thus, the security deposit must be kept in a separate account.

The landlord should pay any earned interest on the security deposit over to the tenant, less a 1% fee for administrative expenses. Unfortunately, prevailing rates of interest are often below 1% so it is very likely that there is no interest left over to pay the tenant. There does not appear to be an obligation on the part of the landlord to put security deposits in the highest interest accounts available.

Moreover, a landlord must maintain the security deposit in an interest bearing account only when the property contains six or more dwelling units. An exception is rent stabilized or rent controlled units. The tenants of Rent Stabilized or Rent Controlled apartments are entitled to have their security deposits maintained in interest bearing accounts regardless of the number of dwelling units located in the building.

Feel free to call us with questions about your security deposit. We will do our best to provide answers.

Leave a Reply