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
    Townhouses in Bedfort-Stuyvesant, Brooklyn
    Sell
    The 10 NYC neighborhoods with the most properties selling over asking price
    Manhattan waterfront condo buildings
    Sell
    Manhattan deals hit new two-year high as inventory wanes
    Apartment buildings on Flatbush Avenue in Brooklyn.
    Sell
    Brooklyn median sales price passes $1 million for the first time
  • Rent
    • Rent
    • Affordable Housing
    • Roommates + Landlords
    • The Market
    • The Search
    • How to Rent in NYC Guide
    This is a photograph of brightly painted fire escapes on historic brick buildings in the Lower East Side of Manhattan.
    The Search
    NYC renters have filed hundreds of FARE Act complaints. Here’s what happens next
    NYC apartment buildings
    Rent
    New law aims to give NYC renters who served time a fair chance at housing
    Manhattan apartment buildings seen from Central Park
    Rent
    Inflation vs. signing a new lease in Manhattan: Which is more painful?
  • Sell
    • Sell
    • Staging + Open Houses
    • Negotiations + Closings
    • Getting Ready
    • How to Sell in NYC Guide
    Townhouses in Bedfort-Stuyvesant, Brooklyn
    Sell
    The 10 NYC neighborhoods with the most properties selling over asking price
    Manhattan waterfront condo buildings
    Sell
    Manhattan deals hit new two-year high as inventory wanes
    Apartment buildings on Flatbush Avenue in Brooklyn.
    Sell
    Brooklyn median sales price passes $1 million for the first time
  • 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
    Fire escape on brick apartment building in NYC
    Troubleshooting
    A fire safety checklist for your NYC apartment building
    A handheld gas detector
    Live
    Gas was seeping through our walls and my family is lucky our neighbor took action
  • 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
    Apartment buildings in Lower Manhattan
    Rent
    Ask Altagracia: If I pay a broker’s fee that a landlord should cover under the FARE Act, can I get a refund?
    Sponsored By Outerbridge Law P.C.
    young woman using space heater to supplement apartment heat
    Rent
    Ask Altagracia: My electric fan heaters cost a fortune to run. How do I get the landlord to replace them?
    Sponsored By Outerbridge Law P.C.
  • 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: What happens if my building doesn’t have a certificate of occupancy?

By Himmelstein McConnell Gribben & Joseph LLP  | September 10, 2018 - 10:00AM
image

If your building has a certificate of occupancy violation, you may be legally permitted to withhold rent.

Charlie Phillips/Flickr

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

My building doesn’t have a valid certificate of occupancy. Do I still have to pay my rent?

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.

Related: 

Ask Sam: I just found out my apartment is illegal. What should I do? (sponsored)

Ask Sam: Can my landlord make me pay his legal fees? (sponsored)

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

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.

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 landlords renters tenants tenants' rights
SHARE
TWEET
BRICK’S PICKS
880 Fifth Ave., PHF, a two-bedroom co-op listed for $6.975 million
The pros and cons of owning a NYC penthouse apartment
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
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