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Ask Sam: What should I do if my apartment doesn't have a Certificate of Occupancy?

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How much total do you plan to tip the building staff this year?

Question:

I just found out my building doesn't have a C of O, and my rental may be illegal. What's my recourse?

Answer:

You should research your building's exact situation, and assess your options carefully before jumping to conclusions here, says Sam Himmelstein, a lawyer who represents residential and commercial tenants and tenant associations. While building owners generally aren't allowed to collect rent in a building that doesn't have a proper Certificate of Occupancy, there are some important exceptions and details to consider before you stop sending in those rent checks.

"Just because a building doesn’t have a C of O doesn’t mean landlord is prohibited form collecting rent," says Himmelstein. "For instance, according to the Multiple Dwelling Law, any building built before 1938 isn’t required to have a C of O. So if you live in a prewar and find out it doesn’t have one, that doesn’t necessarily mean something’s wrong." (However, if the building has had significant work done—for instance, change to the nature of its use, the number of habitable rooms, etc.—the owners would need to acquire a C of O to reflect the updates.)

And if your building has a C of O problem that doesn't directly impact your specific apartment (or your health and safety)—say, if there's an illegal basement apartment, but your apartment is on the second floor and perfectly legal—New York courts may not rule in your favor if you decide to hold rent in solidarity with the downstairs neighbors, says attorney David Frazer.

As a rule, if you suspect something about your apartment's status might not be legal, Frazer advises, "The first thing you have to figure out is 'does the building have to have a C of O,' and if it does, is it being occupied in violation of the C of O?" (One place to start is by plugging your address into the city's Building Information System.) If it is, that could trigger what's known as a rent bar, meaning that you wouldn't be obligated to keep paying rent. Some common scenarios in which this might happen: loft buildings that have been converted from commerical to residential use without an update to the C of O, or multi-family houses where there's an illegal basement apartment, or the C of O was never updated to reflect the correct number of apartments. (These are particuarly common in Queens.)

If you think you've got a case, says Himmelstein, you can start withholding your rent, but keep in mind that while C of O problems may justify your non-payment of current and future rent, they don't entitle you to rebates on past payments. And you can almost certainly expect the landlord to take you to court, evict you, or both. (Unless you're rent stabilized, there's no protection against eviction if your landlord wants you out over this conflict.) "Even if they don't have a C of O, most landlords don't sit idly by and let tenants get away with not paying rent," says Himmelstein. As always, a trip to housing cour twill land you a spot on the tenant blacklist, so think carefully before waging this particular battle with your wayward landlord.

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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.