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
    elevated street view at sunset in Chelsea quarter – Manhattan, New York
    Co-ops
    Cheap trick: How much you can save when buying an older property in NYC
    Lower Manhattan seen from the Brooklyn Bridge
    Buy
    Did you win a bidding war? The ‘winner’s curse’ means you likely overpaid
    139 East 23rd St. #8, a floor-through two-bedroom boutique condo in Kips Bay
    New Construction + Condos
    What you need to know about buying a NYC apartment with direct elevator access
  • Rent
    • Rent
    • Affordable Housing
    • Roommates + Landlords
    • The Market
    • The Search
    • How to Rent in NYC Guide
    Madison Avenue and East 67th Street, Upper East Side, Manhattan
    Rent
    Lease signings fell in August as lower mortgage rates draw buyers out of the rental market
    Paul Passavant and Matthew Conley with their pup, Sting Rae.
    Rent
    From Bushwick to Inwood: We were over the neighborhood party scene and wanted to be close to nature
    Woman with dog at crosswalk in Central Park in NYC
    Rent
    Ask Altagracia: My landlord says no pets allowed but I have an emotional support animal. Can they evict me?
    Sponsored By Outerbridge Law P.C.
  • Sell
    • Sell
    • Staging + Open Houses
    • Negotiations + Closings
    • Getting Ready
    • How to Sell in NYC Guide
    A living room staged by Urban Staging.
    Staging + Open Houses
    13 staging mistakes that can cost you the sale of your co-op or condo
    Modern residential buildings in Chelsea, Manhattan
    Negotiations + Closings
    What is a post-closing possession agreement and what are the risks for buyers and sellers?
    Downtown New York City
    Sell
    Manhattan deals rose to highest level in nearly two years, defying national trends
  • 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
    hidden camera brick underground
    Troubleshooting
    How to find a hidden camera planted by your landlord, Airbnb host, or another creep
    Roommates seated on a couch having an argument
    Live
    How to kick a roommate out of your NYC apartment
  • Improve
    • Improve
    • Small Spaces
    • Small Projects + DIY
    • Renovations
    • Design + Architecture
    • Products + Services
    • How to Renovate in NYC Guide
    insurance adjuster inspecting mold
    Products + Services
    How to tell if your apartment has mold—and how to get rid of it
    Woman on the phone to a plumber about a leaking sink
    Small Projects + DIY
    Here's what I learned to get our absentee landlord to fix things fast
    Apartment buildings in Lower Manhattan
    Renovation
    What repairs are co-op and condo owners responsible for, and what do buildings take care of?
  • Boards & Buildings
    • Boards & Buildings
    • Boards
    • Finance
    • Insurance
    • Legal
    • Property Management
    • Structure & Systems
    • Sustainability
    Burned and Boarded Up Windows
    When should your board hire a public adjuster?
    Manhattan GM
    What should we consider when renewing insurance for our building?
    Facade of NYC buildings
    How much is insurance on a NYC co-op or condo building?
  • Advertise
    • Advertise with us
    • Sponsored Content
    • Experts
    FlatRate moving brick underground
    Live
    How to troubleshoot your move in advance
    Sponsored By flatrate
    Woman with dog at crosswalk in Central Park in NYC
    Rent
    Ask Altagracia: My landlord says no pets allowed but I have an emotional support animal. Can they evict me?
    Sponsored By Outerbridge Law P.C.
    Big Apple Moving stackable eco-friendly bins
    Products + Test-drives
    Do I have to use cardboard boxes when moving in NYC? Are there any green alternatives?
    Sponsored By Big Apple Moving
  • 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

SHARE:
Share to Facebook
Share to Twitter
Print
More...

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
empty nesters in modern kitchen
Empty nester checklist: What to consider if you are buying or renting in NYC
NYC apartment building with AC units
My neighbor's dripping AC is driving me crazy. What can I do?
Historic brick facades of NYC apartment buildings
Getting overcharged by a landlord? Here’s how the Tenant Protection Unit helps rent-stabilized tenants
Apartment buildings in Soho
New Rent Guidelines Board report justifies a rent freeze, tenant advocates claim
Brooklyn apartment buildings
Understanding net effective rent: Here's how to calculate your real monthly rent
image
How much should you renovate your NYC apartment or house before selling?
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