Ask Sam: What happens if my building doesn’t have a certificate of occupancy?

The certificate of occupancy—a legal document that specifies “a building’s legal use and/or type of permitted occupancy”—is required for new buildings as well as older ones that have been substantially renovated, says Sam Himmelstein, a lawyer who represents residential and commercial tenants and tenant associations.

Not every building is required to have a CO, though: Those built prior to 1938 that have not been renovated get a pass.

“But that doesn’t apply to a lot of buildings anymore,” Himmelstein says.

Older brownstones that haven’t been significantly renovated may not have or need a CO, for instance, but for most multiple dwelling buildings, it will be a requirement.

Other buildings may have COs that are out of date due to major upgrades, or because of apartment configurations that don’t comply with city housing codes.

“We see a lot of cases in which the landlord creates a duplex apartment and rents it out as a two-bedroom, with the second bedroom in the basement. That’s illegal—you can have a windowless basement space, but it must be classified as a rec room, not a bedroom,” Himmelstein explains.

And if your apartment is in a building that either lacks a CO, or has a CO violation, legally speaking, you don’t have to pay rent.

However, the appellate courts have been inconsistent in how they apply that statute.

“The law in New York has undergone a remarkable shift since I became a lawyer,” Himmelstein says. “At first, the statute was applied very strictly, but then cases came to the second highest courts in the state, and they issued split decisions. The court in the First Department, which covers Manhattan and the Bronx, decided that unless a tenant was in an illegal apartment, or a violation of the CO created dangerous conditions, they couldn’t withhold rent, because it was too much of a penalty.”

The Court in the Second Department, covering Brooklyn and Queens, however, decided otherwise. 

Later, though, the Court of Appeals, the highest court in the state, shifted back, and as a result today the lower courts are upholding and strictly interpreting the statute.

Himmelstein cites one case in which an uptown landlord removed fire escapes on his building, and a result, the DOB would not issue a new CO. When tenants—both those with fire escapes and those without—then withheld their rent, the courts ruled that they were within their legal rights to do so.

“Right now, the law is very good for tenants,” Himmelstein says. “If you’re in an illegal apartment that doesn’t have a CO, or a building that should have a CO but does not, or your building has a CO but has been altered so that its current configuration is inconsistent with the last-issued CO, you can legally withhold rent. If your landlord takes you to housing court and you can prove a CO violation, the case will be dismissed, and you can live rent-free until the landlord remedies the situation. And once the situation is remedied, that landlord is still barred from collecting the back rent.”

To check on your building’s CO status, use the DOB’s building information system.

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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 or call (212) 349-3000.