Skip to main content
Fulltext search
FILTER RESULTS BY:
RECOMMENDED IN RENT
Moving to NYC after college? Here's how to find a rental apartment
RECOMMENDED IN BUY
How buying real estate in NYC is unlike anywhere else
RECOMMENDED IN SELL
A guide to using a no-fee renovation loan from a NYC real estate firm
RECOMMENDED IN IMPROVE
How to make your NYC renovation more pet-friendly
BEST REAL ESTATE WEBSITE!
National Association of Real Estate Editors
BEST REAL ESTATE WEBSITE! National Association of Real Estate Editors
Brick Underground
Social Links
follow:
  • Facebook
  • Twitter
  • Instagram
  • Flipboard
  • search
Brick Underground
☰ Brick Underground
Brick Underground
Brick Underground
☰
Brick Underground
  • Buy
    • Buy
    • The Market
    • Investing
    • New Construction + Condos
    • Affordable Housing
    • Co-ops
    • Negotiating + Financing
    • How to Buy in NYC Guide
    Billionaires Row in Manhattan
    Sell
    Median price for Manhattan co-ops and condos stuck at $1.25 million in the third quarter
    First Avenue in Manhattan
    Sell
    After a 20 percent maintenance hike, an Upper East Side condop renegotiated its ground lease. Here’s how they did it
    Luxury residential towers on Billionaires Row
    Rent
    With an acoustic consultation, NYC buyers can identify noise problems missed during a walkthrough
  • Rent
    • Rent
    • Affordable Housing
    • Roommates + Landlords
    • The Market
    • The Search
    • How to Rent in NYC Guide
    Chelsea residential building
    Affordable Housing
    NYC’s rent freeze is still in place, at least for now
    image
    Roommates + Landlords
    No heat in your NYC apartment or radiator too hot? Here's what you can do
    Image of a building in New York City
    Roommates + Landlords
    How to break the lease for your NYC rental apartment
  • Sell
    • Sell
    • Staging + Open Houses
    • Negotiations + Closings
    • Getting Ready
    • How to Sell in NYC Guide
    Billionaires Row in Manhattan
    Sell
    Median price for Manhattan co-ops and condos stuck at $1.25 million in the third quarter
    First Avenue in Manhattan
    Sell
    After a 20 percent maintenance hike, an Upper East Side condop renegotiated its ground lease. Here’s how they did it
    Carroll Gardens townhouse
    Getting Ready
    I cleared out my elderly neighbor's townhouse to sell it. Here's how I dealt with mountains of stuff
  • Live
    • Live
    • Neighbors
    • Kids + Pets
    • Neighborhood Intel
    • Products + Test-drives
    • Troubleshooting
    FlatRate moving brick underground
    Live
    How to troubleshoot your move in advance
    Sponsored By flatrate
    The 1871 Jacob J. Lissner House at 125 East 78th St
    Live
    The 1871 Lissner House at 125 East 78th St: A disreputable connection with Tammany Hall
    Red Hook Treehouses
    Live
    During Open House New York, get a rare look inside NYC’s most interesting residential properties
  • Improve
    • Improve
    • Small Spaces
    • Small Projects + DIY
    • Renovations
    • Design + Architecture
    • Products + Services
    • How to Renovate in NYC Guide
    A brightly lit open kitchen with modern clean style and appliances
    Renovation
    Best End-to-End Renovation Companies in New York City
    Sponsored By Advertiser
    Gallery KBNY apartment combination
    Renovation
    Combining two NYC apartments: Why a pre-purchase assessment is the key to success
    Sponsored By Gallery KBNY
    88 Central Park West
    Renovation
    How to navigate window replacement at a landmark building on Central Park West
    Sponsored By Window & Door Pro
  • Boards & Buildings
    • Boards & Buildings
    • Boards
    • Finance
    • Insurance
    • Legal
    • Property Management
    • Structure & Systems
    • Sustainability
  • Advertise
    • Advertise with us
    • Sponsored Content
    • Experts
    FlatRate moving brick underground
    Live
    How to troubleshoot your move in advance
    Sponsored By flatrate
    Manhattan apartment towers
    Roommates + Landlords
    Ask Altagracia: My luxury building doesn't have the amenities it promised and the rent is going up by $500. Can we push back?
    Sponsored By Outerbridge Law P.C.
    A brightly lit open kitchen with modern clean style and appliances
    Renovation
    Best End-to-End Renovation Companies in New York City
    Sponsored By Advertiser
  • Brick Report
  • About Us
  • About Us
Email address
Fulltext search
FILTER RESULTS BY:
New Main menu
  • Buy
    • Buy
    • The Market
    • Investing
    • New Construction + Condos
    • Affordable Housing
    • Co-ops
    • Negotiating + Financing
    • How to Buy in NYC Guide
  • Rent
    • Rent
    • Affordable Housing
    • Roommates + Landlords
    • The Market
    • The Search
    • How to Rent in NYC Guide
  • Sell
    • Sell
    • Staging + Open Houses
    • Negotiations + Closings
    • Getting Ready
    • How to Sell in NYC Guide
  • Live
    • Live
    • Neighbors
    • Kids + Pets
    • Neighborhood Intel
    • Products + Test-drives
    • Troubleshooting
  • Improve
    • Improve
    • Small Spaces
    • Small Projects + DIY
    • Renovations
    • Design + Architecture
    • Products + Services
    • How to Renovate in NYC Guide
  • Boards & Buildings
    • Boards & Buildings
    • Boards
    • Finance
    • Insurance
    • Legal
    • Property Management
    • Structure & Systems
    • Sustainability
  • Advertise
    • Advertise with us
    • Sponsored Content
    • Experts
  • Brick Report
  • About Us
    • About Us
    • Advertise
  • About Us
SUBSCRIBE TO OUR NEWSLETTER →
Social Links Footer
  • Facebook
  • Twitter
  • Instagram
  • Search
Ask Altagracia [ SPONSORED ]

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

By Himmelstein McConnell Gribben & Joseph LLP  | November 10, 2021 - 9:30AM
image

If the conditions in your apartment are unlivable, you may be entitled to a rent abatement. 

Austin Havens-Bowen for Brick Underground/Flickr

When I moved in to my new rental, I found the apartment was not in livable condition. Is this considered constructive eviction? The landlord offered me a different unit in the building, but he is unwilling to return my security deposit and give me a letter of recommendation to help me land another place somewhere else.

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.

 

Alanna Schubach

Alanna Schubach

Contributing writer

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

SEE MORE BY Alanna Schubach »
Brick Underground articles occasionally include the expertise of, or information about, advertising partners when relevant to the story. We will never promote an advertiser's product without making the relationship clear to our readers.

topics:

Ask Altagracia eviction landlords tenants tenants' rights
SHARE
TWEET
BRICK’S PICKS
one-bedroom unit at 365 West 23rd St.
A pied-à-terre purchase checklist: What to consider if you're buying a part-time place in NYC
A kitchen with stainless steel appliances and counter tops and wood floor
11 things NYC landlords are required to provide, and 11 they’re not that might surprise you
716 Broadway, #2
What you need to know about buying a NYC condo or co-op with direct elevator access
Towers on Billionaire's Row
I received a pied-à-terre tax notice for my primary residence in NYC. How do I fight this?
Manhattan apartment towers
‘Central air or bust’: Many NYC luxury buyers will not consider listings without central AC
Roommates seated on a couch having an argument
How to kick a roommate out of your NYC apartment
Follow Brick on Instagram
@brickunderground | #brickunderground
Brick UndergroundBRICK UNDERGROUNDREAL LIFE. REAL ESTATE. REAL NEW YORK.
Social Links Footer
  • Facebook
  • Twitter
  • Instagram
  • Search
Main menu footer
  • Buy
    • The Market
    • Investing
    • New Construction + Condos
    • Affordable Housing
    • Co-ops
    • Negotiating + Financing
    • How to Buy in NYC Guide
  • Rent
    • Affordable Housing
    • Roommates + Landlords
    • The Market
    • The Search
    • How to Rent in NYC Guide
  • Sell
    • Staging + Open Houses
    • Negotiations + Closings
    • Getting Ready
    • How to Sell in NYC Guide
  • Live
    • Neighbors
    • Kids + Pets
    • Neighborhood Intel
    • Products + Test-drives
    • Troubleshooting
  • Improve
    • Small Spaces
    • Small Projects + DIY
    • Renovations
    • Design + Architecture
    • Products + Services
    • How to Renovate in NYC Guide

Get more news you can actually use...

Email address

Delivered to your inbox weekly - for free.

*By signing up you agree to receive occasional emails on behalf of our sponsors

Footer Menu
  • About Us
  • Advertise

Copyright 2009-2024 by BND Ventures Inc | Privacy Policy | Terms of Service | Ad Choices | Login | Powered by Mortar CMS, the AI CMS