Payment of Rent Does Not Waive the Tenant’s Right to Recover Rent Paid Based Upon the Landlord’s Breach of the Covenant of Quiet Enjoyment

The Third Department noted that the tenant’s paying of rent did not waive the tenant’s right to recover rent payments made during the time an elevator was not yet installed. The lease agreement called for the installation of an elevator by March and it was not installed until November. The tenant was entitled to a return of the rent paid before the elevator was functioning based upon the landlord’s breach of the covenant of quiet enjoyment:

The case law makes clear that a tenant’s “payment of all required rent is a condition precedent to the maintenance of . . . an action” for breach of the covenant of quiet enjoyment … . Hence, plaintiff’s payment of rent during the months in question cannot be deemed to be a waiver of its rights under this portion of the lease. City of Troy, N.Y. v 1776 Sixth Ave., Troy, LLC, 2015 NY Slip Op 08236, 3rd Dept 11-12-15