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My landlord's doing construction and I can't use my terrace. Can I get a discount on the rent?

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Q: I rent an apartment that includes a terrace. Management just informed us that they will be putting up scaffolding on my terrace starting next week through December. We only moved in three months ago, and were not told of any upcoming construction or the loss of access to our terrace. Can I request a reduction in rent for decreased services?


Your likelihood of getting a rent reduction will depend both on your rent-stabilization status and the specific language in your lease, say our experts.

"A rent-regulated tenant who had use of the terrace at the start of their tenancy would most likely be entitled to a rent reduction, due to reduction of services," says Jeff Reich, an attorney with Schwartz Sladkus Reich Greenberg Atlas LLP. Landlords of rent-regulated apartments are required to maintain the same level of services that were available at the start of a tenant's residency in the building, so if your apartment is rent-stabilized, one option is to file a reduction of services complaint with the city.

If you're in a market-rate apartment, however, whether you have a shot at a rent reduction will depend on whether or not your lease specifically provides for use of the terrace, says Reich. This is because if your lease states that you'll have access to particular amenity or service (including the use of your outdoor space), if you lose that access, your landlord isn't legally holding up their end of the deal you both agreed to when you signed.

As we've written previously, you'll want to give a particularly close read of Section 13 (which covers "Services and Facilities") of your lease, as well as Section 21 (which covers "Property Loss, Damage, or Inconvenience"). These sections may well also give you an idea of how much of a reduction you could conceivably get for loss of your terrace.

If you find that your lease categorically grants you both access to the terrace and the possibility of a rent reduction, as always, the first step is to reach out to your landlord in writing to see if they'll comply with your request without an accompanying legal battle.

If not, says Reich, the standard option would be to withhold rent, and when the landlord takes you to court, "defend any nonpayment aciton based on the landlord's breach of contract." 

However, you may want to consider whether or not a court battle is really worth it. As we've written before, the size of your potential rent abatement varies depending on the importance of the service that's been lost (that is, unless your lease already specifies an amount), and unfortunately, even if you win against your landlord in housing court, the very fact that you had to go in the first place could land you a spot on the tenant blacklist.

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