Ask Altagracia: If my apartment is illegal, can I get back rent I already paid?
- You don’t owe rent if a place is deemed illegal but you can’t recoup prior payments
- Housing court delays may allow you to stay rent-free until the case is resolved
An apartment is not illegal until the city deems it so, and that determination is not something you want to accelerate.
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If the Department of Buildings finds out about my illegal basement apartment, do I still owe rent? And can I recover the rent I’ve already paid?
If your New York City apartment is determined to be illegal, you no longer owe rent and you cannot recover the rent you already paid. “Although you can’t get past payments back, if the lease is in effect you can withhold rent going forward, effectively offsetting the rent already paid,” said Altagracia Pierre-Outerbridge, attorney and founder of Outerbridge Law representing residential tenants, condo owners and landlords.
Apartments are typically considered illegal because they violate the building’s certificate of occupancy, which is what defines the property’s legal use.
“We’ve had clients who are living in duplexes where the first floor is a cellar and not for human habitation. That is an illegal apartment,” Pierre-Outerbridge said. Other common illegal living situations are apartments that lack light, ventilation, or an additional way out. These are often found in converted cellars or basements where the ceiling height is less than seven feet high.
The Department of Housing Preservation and Development, and the Department of Buildings are the city agencies that will deem an apartment illegal. Once they do, you will be issued a vacate order and lose the apartment immediately.
Violations don’t make an apartment illegal
Many renters mistakenly think mold or undisclosed flooding makes an apartment illegal. They don’t. “An apartment with violations is not an illegal apartment, it is an apartment with violations,” Pierre-Outerbridge said. “Mold does not make an apartment illegal.” However, if your bedroom is next to the boiler in a cellar, that is illegal.
If you’ve been paying rent for an apartment that you think is illegal, there is still a way to be made whole. “No, you don’t get your rent back but we can get you the same number going forward if we correctly leverage the ambiguity of the apartment’s status,” Pierre-Outerbridge said.
Using uncertainty to your advantage
If you think your apartment is illegal, one strategy is to stop paying rent and risk being taken to housing court by your landlord. Since the apartment is not illegal until the city deems it so, that determination is not something you want to accelerate. “If it is illegal you will have to leave, if it is not illegal you have to pay,” Pierre-Outerbridge said. However, you can use uncertainty to your advantage.
Housing court cases can take many months to resolve. “You may have nine months in court fighting on other procedural issues,” Pierre-Outerbridge said. “What we would do is wait it out and see if we can use the uncertainty as leverage,” she added.
This can mean many months when you are living rent free. However, if the city ultimately declares the apartment is illegal, you must leave.
Altagracia Pierre-Outerbridge, Esq. is the owner of Outerbridge Law P.C, focusing primarily on tenant representation. The firm represents all sides in landlord-tenant litigation and transactional matters such as month-to-month holdovers, nuisance cases, licensee cases, harassment claims, repair cases, tenant buyouts, succession claims, DHCR overcharges and rent reductions and more. Pierre-Outerbridge has 15 years of experience litigating in Supreme, DHCR, and Housing Court. To submit a question for this column, click here. To contact Outerbridge Law P.C. directly, call 212-364-5612 or 877-OUTERBRIDGE, or schedule a meeting today.
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