Ask Sam’s Greatest Hits

Sam Himmelstein has been sharing his tenant law expertise with Brick readers for years now. Today, we revisit some of his most popular columns, tackling the big issues that NYC renters face, ranging from construction noise to unsigned leases to eviction. But first, a personal note from Sam: 

It is with a heavy heart that I inform our readers that this may be my last “Ask Sam” column, as it is possible that Brick Underground will suspend publication after this week if new owners are not found. One of the great joys in my life, professionally and personally, has been working with the Brick journalists to produce the columns and other articles affecting New York City tenants for the last eight years. I know that these pieces have had an impact because of the hundreds of emails and calls I have received over the years that started, “I read your column in Brick Underground…” Many clients and prospective clients, members of the public and even a few lawyers have expressed to me how these articles gave them valuable knowledge and information and helped them navigate sometimes difficult legal situations. 

A special word of thanks to the journalists I have worked with-Virginia Smith, Celia Young, Jennifer White Karp and Emily Myers, all of whom were knowledgeable and skilled writers and wonderful people. Finally, special thanks to the publisher Teri Rogers, who invited me to join Brick and created a widely read and impactful award winning publication, and Alanna Schubach, with whom I have worked on the Ask Sam columns for the last six years.  Alanna is a gifted journalist, a great writer and someone who I consider a friend. I will miss you all very much. 

Can I get evicted because of my neighbors’ noise complaints?

Sam’s most popular column goes to show how common it is in a big, loud city to run into conflicts with neighbors over how much noise you—or they—are making. To get taken to court over a noise complaint, you have to be generating a truly exceptional amount of noise. City codes specify what counts as “excessive noise,” but this generally applies to outside sounds, like construction or loud music from a bar.

As for sounds from neighbors, “there’s a subjective nature to noise,” Himmelstein says. “You can’t just testify that someone is being too loud. I often use expert testimony in noise cases.”

However, hiring an expert to come in, set up equipment, and measure decibel levels is quite costly. So if you want to avoid being taken to court by a neighbor, it’s probably cheaper to put down some carpeting, turn the music down, and try to make amends with them.

Can I be evicted for smoking pot now that it’s legal?

Another issue of interest is whether it’s safe to light up in your apartment, now that marijuana possession (up to a point) is legal in New York.

“Since legalization, there has been an uptick in inquiries about neighbors who smoke a lot,” Himmelstein says. “Most of the time, the issue is the smell.”

Though smoking pot may be legal, there are rules against creating a foul odor—many leases explicitly forbid this. If your smoking is creating a nuisance for neighbors, you could be risking eviction.

On the other hand, if your neighbor’s smoking is driving you crazy, it may be grounds to break your lease early, especially if you can argue that it’s making your home uninhabitable.

“Pot smokers are advised to go outside and smoke it,” Himmelstein says.

Repairs are forcing me to move out for a month. Should my landlord pay for me to relocate?

Your landlord isn’t legally required to relocate you, but you’re off the hook for rent for that time—and your landlord has to reimburse you for expenses that result from your relocation.

“If the landlord isn’t willing to pay for this, you may have to sue in small claims court,” Himmelstein says, noting that the jurisdiction of small claims court was recently raised to $10,000 from $5,000.

What are the rules for evicting rent stabilized tenants in NYC?

Since the passage of the Housing Stability and Tenant Protection Act of 2019, protections for rent stabilized tenants have been strengthened, and there are fewer ways for landlords to evict them.

However, there has been an increase in demolition applications, which allow landlords to de-stabilize buildings by knocking them down or gutting them, often building luxury high-rises in their place. In these cases, tenants can often negotiate substantial buyouts. Landlords must pay tenants statutory stipends, but hiring a lawyer to help negotiate buyouts usually results in much higher settlements.

Other methods of eviction and rent destabilization, like creating “Frankenstein apartments,” have been effectively outlawed; evicting tenants on the grounds of “owner use” has been significantly restricted.

Can my landlord make me pay his legal fees?

Most leases stipulate that if your landlord takes you to court and wins, you’re on the hook for their legal fees. However, if you win, they’ll have to pay yours. It’s not always so simple to determine a winner and loser, though – read the column for more information on that – and the legal fees must be presented in a highly detailed, itemized format.

“You have to break down each task the lawyer performed, and the court can decide whether the request for them to be repaid is reasonable,” Himmelstein says.

I’ve been renting for 19 years with no lease, and the landlord wants to evict me. What are my rights?

Tenants who have no leases are considered month-to-month, and don’t have many rights—but they do have the right to a certain amount of notice when the landlord is planning to kick them out. If you’ve lived in your apartment less than a year, the landlord must give you 30 days’ notice if they plan to evict you. If you’ve lived there for more than one year but less than two, they must give 60 days’ notice. And if you’ve been there for two years or more, they have to let you know 90 days in advance.

Can I sue my landlord for excessive construction noise in the building?

This is a very common issue, and one recent improvement for renters is the Department of Building’s new Tenant Protection Unit, which can help when construction interferes with quality of life.

“Go to the DOB website and see what permits the landlord has, if they cover the work they’re doing, and if they have a tenant safety plan on file. Are they violating it by creating these conditions? If it’s bad enough, the DOB will put out a stop work order,” Himmelstein says.

Is it legal to rent out individual rooms in an apartment?

It is indeed illegal to rent out individual rooms in an apartment if the building is not designated as an SRO or hotel. Leases must be clear that each individual renter has the right to occupy the entire apartment, not just a single bedroom.

Ordinarily, with standard, legal leases, tenants are on the hook for covering the entire rent if one of their roommates moves out. But if your landlord is only renting out individual rooms, this isn’t the case. “If one person moves out or stops paying rent, you aren’t liable for their portion of the rent,” Himmelstein says.

And your landlord can’t bring you to court over this—the case will be thrown out, as the lease is invalid.

Do I have to pay rent if the landlord never gave me a signed copy of the lease?

It’s in your best interest to do so if you want to remain in the apartment. If you don’t pay the rent, your landlord could take you to court and show that you signed the lease, or they could send you a signed copy at some point in the near future, thus officially obligating you to pay.

If you want out of the lease, on the other hand, all you need to do is send your landlord a letter, via certified regular mail, stating that you never received a signed lease and hereby repudiate it.

“That’s enough to get out of it,” Himmelstein says.

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 & 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.