Q. Earlier this year I sublet an apartment sight unseen. I did, however, speak to the landlord in advance of signing the lease and inquired about any noise issues that may be known to him.
He shared that there is a playground below the apartment but that it’s not often used and generally is not a problem.
It turns out that the playground is used all day long by various school groups, a day care center, and local families and it’s very loud! It also turns out that the next door neighbor regularly listens to her TV at ridiculously loud levels late into the night.Apparently the landlord was well aware of this because he has since acknowledged that a few years ago he installed soundproofing in the wall in an attempt to address the issue.
I have asked the landlord and the managing agent to address the noise from the neighbor, but the problem has not gotten any better. Do I have any recourse that would allow me to break my lease?
A. The short answer is “maybe.” This is a perfect example of why no one should ever enter into a lease agreement for an apartment they have not seen in person.
While you may have recourse, the issue regarding the playground is the weakest argument, as the level of noise that comes from it or what one would consider heavy versus light use is generally subjective.
As far as the neighbor noise, however, given that the landlord has admitted having prior knowledge that the neighbor’s TV volume level was a nuisance, and that he took steps to try to resolve it, you might have recourse.
The landlord’s failure to disclose a material fact about the apartment could rise to the level of fraud. A “material fact” is any fact that, if known, might have caused the tenant to make a different decision about entering into the lease on the terms agreed upon.
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This type of fraud would occur if:
1. The landlord failed to disclose one or more material facts
2. The landlord had actual knowledge of the facts
3. The landlord’s failure to disclose the facts caused the tenant to have a false impression
4. At the time the landlord failed to disclose the facts the landlord knew the failure would create a false impression
5. When the landlord failed to disclose the facts, the landlord intended that the tenant rely on the resulting false impression
6. The tenant relied on the false impression; and
7. The tenant was damaged as a result of the reliance on the false impression
Each element laid out above would be strictly interpreted, and the burden would be on you to prove in a court of law.
To further complicate matters, most leases include a provision that states that the tenant has had the opportunity to view the property and acknowledges that there are no defects other than “latent defects,” which are those that are not easily discoverable.
There is also a typical provision that states that the landlord and tenant agree that no representation were made other than representations specifically stated in the lease.
If this all sounds confusing and like a lot of information, that’s because it is! Finding “recourse” from the law would require a long, expensive process and there are no guarantees based on these facts.
At this point, the best option would be to approach the landlord and express that an amicable termination of the lease would be a better option for everyone involved as opposed to a potential legal action.
The landlord might even agree to market the apartment himself or you could do it yourself. A broker would do this for either party without any cost (their fee would be paid by the new tenant).
Mike Akerly is a New York City real estate attorney, landlord, and real estate broker. He is also the publisher of the Greenwich Village blog VillageConfidential.
Note: The information provided here is for informational purposes only. It should not be construed as legal advice and cannot substitute for the advice of a licensed professional applying their specialized knowledge to the particular circumstances of your case.