If flooding has made your apartment unlivable, you have the right to break your lease or withhold your rent. 

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Question:

My basement apartment was flooded during Ida. I’m worried about the damp conditions and potential for mold. The landlord says there’s nothing he can do. Can I break my lease without a penalty?

Answer:

It sounds like the conditions in your apartment violate the city’s warranty of habitability, which could legally entitle you to break your lease or receive a reduction in your rent, says Sam Himmelstein, a lawyer with the firm Himmelstein, McConnell, Gribben, Donoghue & Joseph who represents residential and commercial tenants and tenant associations.

“The Warranty of Habitability means you are entitled to a dry, safe, healthy apartment that doesn’t flood, or have moisture or mold,” Himmelstein says. “It’s an absolute obligation on the part of your landlord, and it doesn’t matter if it the flooding is happening because of climate change.”

Note that exceptions to this rule are if the poor conditions in a rental are caused by the tenants themselves, or if they are due to a labor strike (for example, if garbage is not picked up by striking sanitation workers.)

Otherwise, your landlord must take steps to repair the conditions in your apartment and prevent future flooding. In addition to a violation of the Warranty of Habitability, neglecting to do this could also constitute a constructive eviction. This means you've been forced to leave your apartment because it's become unlivable, and it relieves you of the obligation to pay rent.

“If your apartment is now damp and moldy, and property has been damaged—and the landlord is dragging his feet about addressing it—that, in my opinion, is a constructive eviction,” Himmelstein says. “You can turn over the keys to your landlord, move out, and stop paying rent. And if the landlord sued you for breaching the lease, the constructive eviction would be a complete defense.”

But what if you don’t want to move out, and would rather have the landlord just make the necessary repairs? In that case, start by writing the landlord a letter and demanding that he do so. If he refuses, you can bring an HP proceeding against him in housing court to force him to make repairs and correct building violations. You could also withhold your rent, which would compel your landlord to sue you in housing court, at which point you could defend yourself by pointing out his failure to deal with the flood damage and seek a rent abatement.

This comes with risks for tenants who are not rent-stabilized, though.

“Most of the apartments that have experienced flooding are in buildings with less than six units, and are therefore not subject to rent stabilization. Tenants who are not rent-stabilized are not guaranteed the right to renew their leases,” Himmelstein says. “Even though it’s illegal for landlords to retaliate against tenants who complain by not renewing their leases, retaliation is difficult to prove.”

There are other potential complications. Some basement apartments are in fact illegal, because they lack a second means of egress, a sprinkler system, sufficient air and light, or other requirements of legal apartments. Under the multiple dwelling law, tenants do not have to pay rent for apartments in buildings with three or more units if one of those units is illegal, even if they're not in the illegal unit itself.

“These apartments are illegal even if they didn’t flood,” Himmelstein says. “Another common situation is a duplex apartment where the bottom half of the apartment is in the basement. Landlords and brokers frequently market the downstairs area as a bedroom when in fact it is illegal to sleep there, and the area should only be used as a recreation room. These tenants might have a basis to rescind the lease for fraud if they can show that the apartment was falsely marketed as having a bedroom in the basement.”

If you suspect your apartment is illegal, you could withhold your rent. Your landlord might respond by suing you, but if you win in housing court, you could live in your apartment rent-free until your landlord remedies the situation, or be reimbursed to move. You could also recover your legal fees incurred in defending the case. Keep in mind, though, that going to housing court could land you on the tenant blacklist.

Related

Ask Sam: What makes an apartment illegal? Are there consequences for tenants? (sponsored)

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Ask Sam: What kind of problems qualify me for a rent abatement? (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, 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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