Ask Sam: My apartment's riddled with problems. Can I get my landlord to move me to a new one?

Dear Sam: I'm only two months into a yearlong lease, and have already had leaks, mold, and a roach infestation. The building has sent a contractor, but he's done minimal work to improve the situation. Can I persuade my building manager to let me switch to another apartment within the building?

Your landlord has no legal obligation to put you up in a new apartment, but it still could be possible to negotiate a swap, says Sam Himmelstein, a lawyer who represents residential and commercial tenants and tenant associations. 

"When people say 'can I persuade someone,' what they're really saying is can I negotiate," says Himmelstein. "And negotiations are never mandatory—people aren't generally required to discuss alteratives with you. So as a lawyer, it's my job to find what weapons you might have at your disposal in a situation like this."

Similarly, there's nothing in housing law that would require an apartment swap as a potential solution to bad living conditions. "If you went to court, you couldn't ask a judge to order that as relief—it's not the way the law works," says Himmelstein.

Instead, you'd need to explore the usual avenues available to tenants dealing with a violation of the Warranty of Habitability—withhold rent (at the risk of landing on the tenant blacklist), file an HP action, or call 311 to send an inspector.

But first, try having a conversation with your landlord to see if they'd be open to your idea. "In general, I advise people to start off friendly, and say, 'My apartment's not in good shape, it needs to be fixed up, maybe it's better for both of us if you moved me into a different apartment,'" suggests Himmelstein.

If that doesn't work, you can escalate, and let them know that you're thinking of filing an HP action, or withholding rent.

"There's no way of saying to the landlord, 'You have to do this,' but it's possible the landlord might be willing to put you in a different apartment," Himmelstein says. "I've done deals like that in the past, it does happen."

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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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