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I found out my apartment is illegal, and now my landlord wants to evict me. Can I get rent money back?

By Alanna Schubach  | September 17, 2018 - 10:00AM

I just found out my apartment is illegal, and as a result, I’m being evicted. Can I sue for the rent I already paid?

It's unlikely you'll be able to recoup the rent you've already paid, but you may be entitled to sue your landlord if they misrepresented the apartment when they rented it to you, our experts say.

Typically, an apartment is considered illegal when it is being used in a way that is in conflict with its building's certificate of occupancy

"A CO will go floor by floor of the building and explain how each can be used," says Catharine Grad, partner at Grad & Weinraub, LLP.  "Often in neighborhoods with a high rate of conversions, you'll see a duplex apartment with a basement level being used as a bedroom. But if you look at the building's CO, it will describe that space as a rec room." 

Sometimes an apartment might also be considered illegal due to conditions in the building that make it dangerous to reside there. If either of these situations apply to you, you may be able to withhold rent payments. 

"The law says that the penalty imposed on landlords for using the premises in violation of the CO is to prohibit the collection of rent," Grad says. However, note that if you live on the fifth floor, and the CO violation has to do with an illegal basement apartment, you may not be covered by this law. 

Furthermore, identifying your apartment as illegal and withholding rent comes with the risk that the landlord will ask you to move out so that he or she can remedy the situation—and avoid having tenants residing in the building rent-free. 

"In reality, you can withhold rent, but expect ultimately that you're going to lose the place," Grad says. "It's not a situation that's going to go on indefinitely." 

Getting your previously paid rent back may also be a challenge. Under the multiple dwelling law, tenants can withhold rent, but not recoup it. 

"We refer to this statute as a shield, not a sword," says Sam Himmelstein, a lawyer who represents residential and commercial tenants and tenant associations (FYI, a Brick sponsor). "If you voluntarily pay rent in an illegal apartment, you cannot get it back. There's a bar to the collection of rent, but that's not a basis to recover rent you previously paid." 

However, you might have grounds to sue your landlord, if you can prove that they misrepresented the apartment as legit when they knew, in fact, it was not. 

"You might be able to rescind the lease and recover some rent on the theory you were fraudulently induced into moving into the apartment," Himmelstein says. 

If you decide to sue, you'll want to first consult an attorney to advise you on how to best proceed. 

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Alanna Schubach

Contributing writer

Contributing editor Alanna Schubach has over a decade of experience as a New York City-based freelance journalist.

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