Ask Sam: Our landlord is renting to a commercial tenant without changing the Certificate of Occupancy. Can we withhold rent?
My landlord has reconfigured our building by combining some apartments and renting to a new commercial tenant. Does this violate the Certificate of Occupancy? What can we do it about it?
If the certificate of occupancy has not been updated to allow for commercial tenants, your landlord is violating it, and you can withhold your rent, says Sam Himmelstein, a lawyer at Himmelstein, McConnell, Gribben, Donoghue & Joseph, who represents residential and commercial tenants, and tenant associations.
The certificate of occupancy (C of O) is a document that specifies a building’s legal use and occupancy, and when a landlord makes major changes to the way a property is rented or laid out, they’re required to update it.
“Any change in the use or occupancy of a building usually obligates the landlord to amend the building’s certificate of occupancy. If they create additional units, reduce the number of units, or convert a space for commercial use, they absolutely must obtain a certificate of occupancy that accurately reflects the manner in which the building is occupied.” says Jesse Gribben, a partner at HMGDJ.
Following a 2012 Court of Appeals case, New York courts have begun interpreting the law about C of O violations more strictly, ruling in favor of tenants even if their apartments are not directly affected by alterations made by the landlord. In fact, it may be considered a violation if a commercial space is intended for a specific type of use and the landlord rents it to a commercial tenant who uses it differently, Gribben says.
If the landlord has combined residential spaces and/or is renting residential space to a commercial tenant without updating the C of O, they are definitely in violation of the city’s Multiple Dwelling Law. This entitles you to stop paying rent until the C of O is updated, which could take quite a while.
“If the situation is as simple as the C of O doesn’t allow for commercial use and the landlord is renting to a commercial tenant, the landlord may be able to evict the commercial tenant,” Gribben says. “But if they’ve added or combined units, it could present a more difficult question.”
You and your neighbors should act quickly, because you can’t get back the rent you’ve already paid when there is a C of O violation. Start by forming a tenants association to more effectively deal with your landlord and to split the costs of hiring an attorney. Then, if you begin withholding your rent and your landlord sues, you can interpose a defense based on the landlord’s violation of the multiple dwelling law.
In a case Gribben defended, for instance, a landlord sub-divided several apartments in such a way that eliminated fire escapes. Tenants withheld rent; when the landlord sued, the trial court and appellate courts ruled that he had violated the law by not updating the C of O. As a result, those tenants have not had to pay rent for almost five years.
“In any scenario in which tenants have questions about the Certificate of Occupancy, they should speak to an attorney sooner rather than later,” Gribben says. “You don’t want to pay rent when you’re not legally obligated to.”
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Sam Himmelstein, Esq. represents NYC tenants and tenant associations in disputes over evictions, rent increases, rental conversions, rent stabilization law, lease buyouts, and many other issues. He is a partner at Himmelstein, McConnell, Gribben, Donoghue & Joseph in Manhattan. To submit a question for this column, click here. To ask about a legal consultation, email Sam or call (212) 349-3000.
