Ask Sam: My luxury building doesn't have the amenities it promised and the rent is going up. Can we push back?
- If your lease specifies the amenities then failure to provide them is a breach of contract
- In most cases leases do not mention amenities but you still have several options
- You and your neighbors could negotiate a smaller rent increase or even a decrease
Last year we moved into a new luxury rental building that advertised lots of amenities, including a pool and parking garage, but they don't exist and the super told me the building can’t structurally support all of them. Management sent us a lease renewal with a $500 rent increase. Can we push back?
Much depends here on the language in your lease, says Sam Himmelstein, an attorney at Himmelstein, McConnell, Gribben & Joseph who represents residential and commercial tenants and tenant associations.
“The first thing I’d want to know is whether these things are listed in the lease or not,” Himmelstein says. “If the lease sets forth certain amenities—which leases rarely do—then failure to provide them is a breach of contract, and tenants would be entitled to a reduction in their rent.”
Look closely at your lease to see if it specifies access to any of the amenities promised in the advertising for the building. If it does, your rent would include those amenities, and should be reduced, since they aren’t available. Determining the value of those amenities, though, could prove tricky.
But in most cases, leases do not mention amenities. And even though the apartments were marketed as having access to these amenities, under contract law what matters most is the language of the lease. Moreover, failing to provide things like a swimming pool or parking garage is unlikely to be covered by the warranty of habitability, a law that guarantees New York tenants the right to a safe, livable apartment.
Still, you could consider joining forces with your neighbors and reaching out as a group to the landlord about your frustrations.
“Writing to the landlord and saying you’re going to withhold your rent unless they restore these services would be very effective, if you could do it collectively,” Himmelstein says.
You could also, as a group, deal with the landlord’s proposed rent increase and try to negotiate a smaller one, or even ask for a rent decrease, based on the failure to provide promised amenities.
If you’d rather just move out of the building entirely, you do have a legal basis to break your lease early.
“You could argue that you were fraudulently induced into signing your lease on the basis of these promises, so you have the right to break your lease with impunity—and maybe even recover some damages,” Himmelstein says. But if the lease has what is known as a merger clause—a clause stating that any prior representations which are not included in the lease are not enforceable—then breaking the lease might not be an option.
One last option Himmelstein suggests is to take to social media. Get the word out in the community that this building does not deliver on its promises, which is likely to drive your management crazy—and may persuade them to either get those amenities up and running, or give you a break on your rent.
Ask Sam: My rent is going up by 30 percent. Can I fight this increase? (sponsored)
Ask Sam: What is a reduction of services complaint, and when should tenants file one? (sponsored)
Ask Sam: What kind of problems qualify me for a rent abatement? (sponsored)
Read all our Ask a Renters Rights Lawyer columns here.
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.