Ask Sam: A restaurant is moving into my building and taking over a backyard used by tenants. What can we do?
If use of the backyard isn't mentioned in your lease, there may not be much you can do as a market-rate tenant.
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I live in a mixed-use building. The first floor was previously an office, and all the tenants had access to the building’s backyard. Now a restaurant is replacing the office and will be using the yard exclusively. I want to continue enjoying the outdoor space. Is there anything I can do?
The answer depends on whether you are a rent-stabilized or market-rate tenant, says Sam Himmelstein, a lawyer at Himmelstein, McConnell, Gribben & Joseph who represents residential and commercial tenants and tenant associations.
“For market-rate tenants, if the yard is not referred to in the lease, you probably don’t have a claim,” Himmelstein says. “The language of the lease governs what you have access to, so if the yard is not mentioned, it’s not a violation of the lease for it to be taken away.”
That said, if the broker or the landlord told you that all tenants had access to the yard when you first rented your apartment, you might have a claim for fraud or misrepresentation, which you could use as a way of getting out of your lease.
Rent-stabilized tenants have a stronger case against the landlord in this situation.
“Under rent stabilization, you have the concept of required services. When you move into your apartment, whatever services are initially provided must be continued for the duration of the tenancy,” Himmelstein says. “If the landlord wants to remove one of the provided services, he has to apply to the DHCR to do so.”
The DHCR might grant this request but will typically require landlords to lower the rent to make up for it. Many landlords don’t bother to apply, Himmelstein adds, because the process takes so long.
If you’re a stabilized tenant and your landlord hasn’t applied to the DHCR in regard to the yard, “you could file a reduction of services complaint, and the DHCR would likely order the landlord to restore access to the yard and lower the rent until the landlord does so,” Himmelstein says.
As for the potential issues with noise, pests, and safety that a restaurant could bring to the building, there’s not much you can do simply in anticipation of those problems arising. But if and when they do come up, there are a few options.
“If the restaurant does, in fact, lead to excessive noises, pests, and a reduction in security, tenants could call the DEP. There might be certain hours beyond which the restaurant can’t operate back there,” Himmelstein says.
And if any of these problems were especially severe, you may be able to argue that there has been a breach of the warranty of habitability, which guarantees all NYC tenants safe, livable apartments.
If, for instance, noise from the restaurant exceeds legal decibel levels, or leads to serious pest issues, you could file an HP proceeding to force your landlord to remedy the situation. You could also withhold your rent, and claim a breach of the warranty of habitability as a defense, which could lead to your getting a rent abatement for your troubles.
Related:
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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 & 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.
