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My landlord is opening a restaurant on the ground floor of our building. Do I have any recourse?

By Virginia K. Smith  | March 6, 2017 - 2:59PM

I just found out a new restaurant is opening below me in my rental building. (The commercial space was previously empty.) I don't think my lease has any disclosure about a restaurant on-site—do I have any recourse about potential smells, noise, pests, and other nuisances the new business might bring with it?

You don't have any recourse against your landlord for inviting a restaurant into the space, say our experts, but that changes if the new business venture starts to infringe on your quality of life.

"Generally speaking, a residential lease would not provide any provisions regarding the use of commercial spaces in a building," explains Jeff Reich, an attorney with Schwartz Sladkus Reich Greenberg Atlas LLP. So even if the space had previously been empty or used for a different purpose, your landlord doesn't owe you an explanation, or a heads up.

"As long as the use is legal—which I'm sure it is, since people don't tend to open restaurants in illegal spaces—you can't claim breach of lease because it used to be a clothing store and now it's a restaurant," concurs renters' rights attorney Sam Himmelstein of Himmelstein, McConnell, Gribben, Donoghue, & Joseph.

However, you're still legally entitled to a habitable apartment. "If pests, fumes, noise, or smells interfere with the habitability of your apartment, you have the same recourse that you'd have if you didn't have heat or hot water," says Himmelstein. (A prime example of this: an Upper West Side bagel shop that was sued for making an upstairs apartment so hot as to be "uninhabitable," as the Daily News reported in 2015.) You could withhold rent (though that brings the risk of landing you on the tenant blacklist), or if fumes and noise are the issue, call 311. If you're a rent-stabilized tenant, you could also file a reduction of services complaint with the Department of Housing and Community Renewal.

And if the problem starts to threaten your health and safety—for instance, noxious fumes or a serious pest infestation develops—you can file what's known as an HP action, which is a free method of seeking a court order compelling your landlord to repair or remedy the problem.

But before things escalate, it's also not a bad idea to do some pest prevention of your own. "I would recommend exclusion such as sealing around service lines and screening windows in advance," suggests Gil Bloom of Standard Pest Management. "You might also consider placing silica gel or boric acid dust in walls and then sealing with a quality sealant."

This work can cost between $180 and $300, says Bloom, depending on a variety of factors. But you can't necessarily count on your landlord to pay for it. While it's certainly worth asking, says Himmelstein, New York law does not require the landlord to cover this type of work, or to reimburse you for the cost.

"You should press them to do it, but if you spend a few hundred dollars exterminating, it's not guaranteed they would pay you back," says Himmelstein. Still, if you plan to stay in this apartment for the long haul—even with your new downstairs neighbor—it might be worth shelling out now for future peace of mind.

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