Ask Sam: What are the rights of tenants in a building with a CO violation?
My neighbors and I recently discovered that our rental building has a certificate of occupancy violation. What are our rights? Can we withhold our rent?
In a recent court case, the Appellate Division affirmed a judge’s ruling that tenants in a building with a certificate of occupancy violation were allowed to withhold rent, and you and your neighbors may be able to do the same, says Sam Himmelstein, a lawyer who represents residential and commercial tenants and tenant associations.
A certificate of occupancy, or CO, is required of all NYC landlords, and is issued based on existing building codes. If a landlord makes changes to a building, they’re obligated to update the CO.
In a recent case argued by Jesse Gribben of HMGDJ Law, tenants of one NYC building with an out-of-date CO formed a tenants association and organized a rent strike. A prior owner of the building had reconfigured the building to create additional apartments. The CO said there were 53 apartments, but the building currently has 60. Every unit is required to have two independent means of egress, but due to the landlord’s changes, most tenants do not have this, a violation of building codes designed to protect tenants in the event of a fire.
“Only two lines in the building have access to a secondary means of egress,” Gribben explains. “The Department of Buildings requires the presence of 24/7 fire guards as a condition of continued occupancy of the building.”
In response to these conditions, the tenants withheld their rent and took legal action. A trial court judge ruled in their favor, finding that the CO was invalid and no tenants in the building were required to pay rent. Moreover, the tenants who have withheld rent are not required to pay it back.
The landlord appealed this decision, but two appellate courts unanimously ruled in favor of the tenants.
This decision is significant for NYC renters who find themselves living in buildings with nonexistent or invalid COs, as it represents the continuation of change from past court rulings.
“For several decades, courts had ruled that unless tenants could show that they were in an apartment that was illegal, or were directly impacted by the violation of the certificate of occupancy, they couldn’t take advantage of this right to withhold rent,” Himmelstein says.
But now, in light of this recent decision, all tenants in a building with a CO violation may be allowed to withhold rent, regardless of whether their individual apartments are illegal due to conditions like no means of egress.
“The trend is toward strict compliance. If you have 40 units in a building and you subdivide one to create additional apartments without getting a new CO, potentially that would trigger this defense and no tenant would have to pay rent,” Gribben says.
The problem of CO violations is widespread throughout the city, with landlords renovating buildings without updating existing documents or complying with current building codes.
For the tenants in this case, they don’t have to begin repaying rent until the landlord legalizes the building by creating the required means of egress and applying for a new CO. Furthermore, they won’t have to pay back rent—and they’ve been withholding payment since 2015.
If you suspect your building has an invalid CO, or lacks a CO entirely, check on its status with the DOB’s building information system. If you find a CO violation, consider forming a tenants association with your neighbors, going on rent strike, and finding legal representation to help you stand up for your rights in court.
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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, Donoghue & Joseph in Manhattan. To submit a question for this column, click here. To ask about a legal consultation, email Sam at [email protected] or call (212) 349-3000.
