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

While suing your landlord might not be the most productive course of action, you do have legal recourse if your landlord's construction is interfering with your quality of life, says Sam Himmelstein, a lawyer who represents residential and commercial tenants and tenant associations.

"The term that's used for this these days is 'construction harassment,' and it's a very common thing in New York," says Himmelstein. "It often happens in the context of a condo conversion when the landlord wants to upgrade the building or the other apartments."

However, New York City's Warranty of Habitability stipulates that you're entitled to a habitable apartment, regardless of what's causing the problems, and your landlord is responsible for minimizing the noise and other construction related-issues such as dust and debris. 

"There's no question that excessive noise is considered a breach of the Warranty of Habitability," says Himmelstein. "The question in noise cases becomes what is 'excessive.' What seems extremely loud and disruptive to one person might be tolerable to another." To get an objective measure of how bad the noise problem is, you may want to consider bringing in acoustical engineer to measure the problem. Similarly, if there's a dust problem, it's important to have the dust tested, as it could contain dangerous particles from lead or asbestos. If noise levels are found to be excessive or dust is putting residents' health at risk, the city should issue a stop work order on your landlord's construction.

For this and other reasons, Himmelstein recommends forming a tenants' association to handle the problem, rather than starting an individual lawsuit against your landlord. "On a practical level, suing over this and proving damages would involve proving that the noise was excessive, that you notified your landlord and were ignored, and the degree to which your life in the apartment was disrupted," he explains. "And your damages would generally be limited to a rent abatement—maybe a $30 per day deduction if your daily rent is $100 per day. You don't get mental stress damages and all that other stuff."

And while you could opt for a "rent strike," or withholding rent until your landlord fixes the problem, this will almost certainly wind up with a trip to housing court, and potentially land you on the tenant blacklist.

And besides splitting the cost of legal representation and noise or dust testing, a tenants' association gives you much more bargaining power with the landlord. "I've been much more sucessful dealing with these cases as groups rather than as individuals," says Himmelstein. "If you band together, you can sometimes extract an agreement out of the landlord to give people temporary rent reductions for the period of the construction, and even get them to implement certain construction protocol regarding notice, hours of operation, and potentially even steps to minimize the noise." (More tips on starting a tenants' association here.)

In these cases, says Himmelstein, "I've been able to negotiate abatements range from 22 to 40 percent for the entire period of construction, starting retroactively from when it began, until it's finished."

"As an individual, it's very difficult, you just don't have that much bargaining power," Himmelstein adds. "You'll almost definitely end up getting some kind of abatement and compensation if you do it as a group."

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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.

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