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Ask Sam: There was a fire next door and it's aggravating my asthma. Can I break my lease?

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Question:

There was a fire in the building next door to mine. Since then, I've been experiencing severe asthma symptoms. Can I break my lease and get my security deposit back? How do I avoid paying an early termination fee?

Answer:

You may be able to wiggle out of this lease early without paying a fee, but the burden of proof is on you, says Sam Himmelstein, a lawyer with the firm Himmelstein, McConnell, Gribben, Donoghue & Joseph LLP who represents residential and commercial tenants and tenant associations.  

"If you can link your asthma symptoms to the condition of the apartment, you should be able to break the lease on the grounds that the apartment is uninhabitable," Himmelstein says. 

Under city property laws, the warranty of habitability guarantees tenants the right to a livable, safe, and clean home, so if your asthma stems from conditions in your apartment, you can legally end your lease without financial consequences. 

"The landlord has the obligation to provide a habitable apartment, even if the cause of the problem is from an outside source," Himmelstein explains. "9/11 is the worst example: All these apartments in lower Manhattan were uninhabitable afterwards, and the landlords were obligated to fix them up."  

In your case, though, you will need to provide evidence that your health issues are a result of conditions in the apartment. As your landlord is likely to claim that he or she cleaned up after the fire, you may need to get environmental testing done to prove that the indoor air quality is causing your symptoms. 

Armed with scientific evidence, you should be able to walk away without incurring a termination fee. The security deposit, however, may be a different story. 

"The landlord probably will not refund the security deposit," Himmelstein says. "You could bring a damages case against the landlord, but most lawyers wouldn't take this kind of case on because of cost effectiveness issues, as the damages probably aren't that high." 

Instead, Himmelstein says, if simply walking away from the lease without paying any termination fees doesn’t satisfy you, your best bet to get that deposit back is to sue in small claims court or file for mediation through the New York state Attorney General’s Office.

 

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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 at [email protected] or call (212) 349-3000.

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