Dangerous or unhealthy conditions in a residential apartment may entitle a tenant to a rent abatement under the warranty of habitability statute RPL §235-b. Commercial tenants are not entitled to use the warranty of habitability defense to obtain a rent abatement.
Commercial tenants may nevertheless invoke the doctrine of constructive eviction or partial constructive eviction, under certain circumstances, entitling the tenant to a pro rata reduction in rent or the avoidance of the rent obligation in its entirety. The tenant must show that its premises, or a portion of the premises, has been rendered unfit for occupancy as a result of the failure to correct conditions which are landlord’s obligation. The tenant must show that, as a result, of these conditions the entire premises or a portion of the space has been abandoned.
A constructive eviction results in a complete abatement of rent, while a partial constructive eviction results in a partial rent abatement. The tenant may occupy a portion of the commercial premises and pay rent for only the portion of the premises that it continues to occupy.