3 reasons you might not owe rent after all

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By Teri Karush Rogers  |
January 3, 2011 - 6:54AM

Let's be clear: A lease is a legal document in which you, the renter, agree to pay a fixed amount of rent in exchange for an apartment.  If you agree to the deal, you should live up to it, at least so long as your landlord lives up to his or her end.

In the real world, there are plenty of incompetent and/or predatory landlords. If yours turns out to be among them, you may want to familiarize yourself with several circumstances under which your end of the deal (the rent) may be smaller than you think.   

1. Your landlord is overcharging you

If your apartment is subject to rent control or rent stabilization, the rent collected by the landlord can’t exceed the legally permitted rent no matter what the lease says, explains real estate lawyer Steven Wagner of Wagner Berkow, who is also the chief architect behind our recent guide to breaking a lease.

“A tipoff that this might be your situation is where the rent is a nice even number like $1,250,” says Wagner  “Rents in buildings that are subject to rent stabilization are usually oddball amounts, like $1,251.42.” 

Most buildings with six or more units built before 1971 and buildings that receive tax benefits under certain city programs like 421-a or J-51 (including many newer buildings) are subject to rent stabilization laws, says Wagner. It is a bit tricky to check the legally appropriate rent, but the information is available at the offices of the New York State Homes and Community Renewal (formerly known as the New York State Division of Housing and Community Renewal or “DHCR”).

If the landlord is collecting too much rent and you can show that it was not just a typo or failure to submit a rent registration form (a form the landlord has to submit every year notifying the DHCR that the rent is being increased in accordance with the law), you may be entitled to triple damages (three times the amount by which you were overcharged) plus legal fees, says Wagner. Moreover, your rent will go down to the legal regulated rent even if the rent listed in your lease is higher.

2. Your building isn’t zoned for residential use

If your building does not have a certificate of occupancy (“C of O”) permitting residential use of your apartment, the landlord can’t collect rent from you, says Wagner.

“You have to be careful about this one, though, because some buildings constructed before 1938 when C of Os were first required don’t necessarily have one,” says Wagner. “If the building does not have one, and then it is altered in a way that would have required an amendment to a C of O if it did have one, then the building is required to get one.  Examples of this would be changing the number of apartments or changing the use.”

You can look up your building’s status on the Department of Buildings’ website:  On the first page of the DOB website, put in the address of your building. The first page for your building has a link in the upper right hand part that lets you look at the C of O or indicates if there isn’t one. 

3. Your apartment or building is unsafe

If you are sued for non-payment of rent, conditions in your apartment or building that are dangerous to health, life and safety can be a defense, as provided by the Warranty of Habitability (Real Property Law Section 235-b) .

The court will consider the seriousness of the condition, says Wagner, as well as whether the landlord was responsible for the condition, whether he or she tried in good faith to correct it (you have to let the landlord’s people into the apartment to fix the problem) and whether there is any savings to the landlord (i.e., if smelly garbage piles up because of a strike and the landlord is not paying building staff, the court can consider the landlord’s payroll savings in assessing the damages). 

“If your apartment is rent regulated under rent stabilization or rent control, you can complain to Homes and Community Renewal for a rent reduction, too,” says Wagner.

How bad do things have to be?  The list of problematic conditions includes no heat, no hot water, rats, roaches, mice, bed bugs, leaks, mold, wind coming into the apartment through broken windows, peeling paint (particularly if it is lead paint), bad odors, unreasonable noise, and exposed and dangerous electrical wires. 

“It’s basically anything that would violate the Housing Maintenance Code, particularly class C violations, which are the most serious,” says Wagner.

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Teri Karush Rogers

Founder & Publisher

Founder and publisher Teri Karush Rogers launched Brick Underground in 2009. As a freelance journalist, she had previously covered New York City real estate for The New York Times. Teri has been featured as an expert on New York City residential real estate by The New York Times, New York Daily News, amNew York, NBC Nightly News, The Real Deal, Business Insider, the Huffington Post, and NY1 News, among others. Teri earned a BA in journalism and a law degree from New York University.

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