Ask Sam: My rental wasn’t ready when I moved in. Is that constructive eviction?

For the conditions in your apartment to be considered constructive eviction, you have to move in first, says Sam Himmelstein, a lawyer with the firm Himmelstein, McConnell, Gribben, Donoghue & Joseph who represents residential and commercial tenants and tenant associations.

Constructive eviction occurs when conditions in an apartment are so poor and unlivable that a tenant is forced to move out. There could be serious problems with leaks and mold, for instance, or ongoing construction that fills an apartment with dust, or a lack of heat and hot water.

“The conditions have to be really bad,” Himmelstein says. “It can’t be that the landlord just didn’t finish painting, or the floors need to be sanded. It has to have reached the point where you can’t live there, so if that’s the case and the landlord isn’t willing to make repairs, then it would be considered constructive eviction.” 

If you have already moved into the apartment and believe the conditions constitute constructive eviction, you must move out in order to assert it.

“You can’t claim constructive eviction and remain in possession of the apartment,” Himmelstein says. “An important element of it is that you were essentially evicted because the apartment is unlivable.”

The state of your apartment may also constitute a violation of the warranty of habitability, which requires that apartments be safe and livable.

When a landlord is in breach of this, tenants can respond in several ways. They can stay in their units and withhold rent, forcing their landlords to take them to housing court, where they can defend themselves on the grounds that the warranty has been violated.

They can also bring an HP action against the landlord in housing court to force him to make repairs. Tenants cannot seek and the court cannot award rent abatements or damages in an HP Proceeding, but tenants can ask that a rent abatement be included in any settlement that might be reached.

Depending on the results of these actions, you could get your money back. But as for getting a new lease elsewhere, you’re on your own.

“If a tenant does move out because their apartment is truly in bad condition, they’re entitled to their security back,” Himmelstein says. “But there’s no way you can force the landlord to give you a letter of recommendation for a new apartment. No court will order a landlord to do that.”

Related: 

Ask Sam: Repairs are forcing me to move out for a month. Should my landlord pay me to relocate? (sponsored) 

Ask Sam: My apartment is riddled with problems. Can I get my landlord to move me to a new one? (sponsored)

Ask Sam: What kind of problems qualify me for a rent abatement? (sponsored)

Ask Sam: When can tenants legally withhold their rent? (sponsored)

Read all the 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, 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.