Ask Sam: A leak from the unit upstairs flooded my apartment, but the landlord is blaming me. How can I keep my security deposit?

First of all, you could stay put if you wanted to—and you’re probably entitled to a rent abatement, says Sam Himmelstein, a lawyer at Himmelstein, McConnell, Gribben & Joseph who represents residential and commercial tenants and tenant associations. 

“This leak breaches the warranty of habitability, and a leak is always the landlord’s responsibility unless the tenant damages the plumbing somehow,” Himmelstein says. “You can withhold your rent to pursue the abatement and bring an HP proceeding against the landlord to force them to repair the leak and any resulting damages.”

You’re also entitled to a rent abatement and could recover your property damages if you can show the landlord was negligent, Himmelstein adds, but a property damage claim would require you taking on a third case in either small claims or civil court.

If you just want out of the apartment—and to get your security back—you have a few options.

“Normally I’d say withhold your last month’s rent if the landlord is threatening to go after your security, but you may have already paid that,” Himmelstein says.

There may also be language in the termination agreement you made with your landlord stating that the early lease termination is conditioned upon you being current with your rent payments, which would make it difficult to hold onto the final month of rent.

However, you should be able to get your money back by holding your landlord to the security deposit laws, which require him to conduct an inspection of the apartment and issue you an itemized list of damages beyond ordinary wear and tear that you will be charged for. He must also return whatever remains of your deposit within 14 days of you vacating the apartment.

“If the landlord doesn’t do all this, they’re barred from withholding the security deposit,” Himmelstein says.

And if he doesn’t comply with the law, you can file a complaint with the Attorney General’s office. Suing in small claims court is also an option, although this can be very time-consuming.

“I recommend going to the Attorney General’s office, because I’ve heard it’s effective—they can’t order the landlord to refund you, but landlords don’t like being hauled into a law enforcement agency,” Himmelstein says. “Small claims court can take forever, and it may not be worth the time and effort.”

Finally, don’t worry about cleaning and repainting before you move out.

“There is no possible scenario where you would be responsible for painting and cleaning up after damages caused by a leak. That’s completely the landlord’s responsibility,” Himmelstein says. “Your responsibility is to repair any damage caused by you and leave the apartment in broom-clean condition, with all possessions removed.”

Related: 

Ask Sam: We deducted the cost of an emergency repair job from our rent, but our landlord insists we owe him. Is he right? (sponsored) 

Ask Sam: What are my rights as a NYC renter in a market-rate apartment? (sponsored) 

Ask Sam: Repairs are forcing me to move out for a month. Should my landlord pay me to relocate? (sponsored)

Read all our Ask a Renters Rights Lawyer columns here.

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 & 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.