Dear Sam:  My landlord is converting our rental building into condos, and while technically we’re allowed to stay, the construction is causing me and my neighbors major quality of life issues. The hot water goes on and off all the time, there’s dust in the air, constant noise and the elevators are often out of service. What are our rights? How can we get the landlord to be more considerate of the people who live here? Are we entitled to a rent abatement at least?"​

It may be cold comfort, but at least you're not alone, says Sam Himmelstein, a lawyer who represents residential and commercial tenants and tenant associations. The problem is worse than ever, he says, as landlords-turned-developers vie to build  large $10 million units that have flooded (and been snapped up from) the market in the past three or four year. That requires combining units, and serious renovation. "The conditions become horrible for the people still living there," he says.

While living through a  hellish renovation may be commonplace,  it's not necessarily legal, according to Himmelstein.  In New York State, tenants have a right to "habitable" apartments and common areas, even if your landlord tries to convince you that a certain amount of disruption is par for the course in a  renovation. Under the Warranty of Habitability, your obligation to pay rent depends on your apartment remaining "habitable."   And pretty  much the  only exception to your landlord's responsibility to provide a habitable abode  is if the conditions are caused by a labor stoppage, i.e. the city's garbage men go on strike, says Himmelstein.

That's what the law says. So how do you get your landlord to comply? Band together with your building's other renters to  organize a tenants association--an informal group that can collectively take concerns to the landlord, and if need be, share the cost of hiring a lawyer."An individual isn't going to get the landlord to change their building policy, but 40 people well might," says  Himmelstein.

Your tenant association should send the landlord a formal letter detailing the problems in the building, both to make the landlord aware of the problem, and create a legal record showing that you gave the landlord notice about the conditions. Request that the landlord address the issues at hand, and let them know that if they don't, you'll move forward with litigation. (Withholding rent either as an individual or as a collective group used to be a common method of getting the landlord's attention, but with renters nervous about landing on the tenant blacklist, says Himmelstein, the practice has petered out.)

In most cases, it's unlikely that your case will go to court, and instead will end in a settlement that entitles the building's renters to abatements (how much will depend on the nature of the work being done), as well as rules that will make life easier while construction is completed. Landlords frequently agree to designate an on-site representative for residents to contact when there's a problem, give proper notice if any services will be temporarily shut down, clean up daily, and hire an environmental firm to make sure that dust isn't dangerous. You may not be able to make the men in hard hats disappear, but at least you (and your neighbors) will be able to breathe easier.

Another weapon in your arsenal, if conditions in the building are really awful, is filing an HP action seeking a court order for the landlord to make repairs or face heavy fines if they fail to do so.  You can file the HP action  as a group or by yourself,  without hiring a lawyer. While an HP action  will almost always result in repairs, it's unlikely to result in  financial compensation, like rent abatements, unless achieved as part of an overall settlement, says Himmelstein.


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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.

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