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Ask Sam: How can I get access to my apartment after a fire?

It's a good idea to get together with your neighbors and form a tenant association to put more pressure on your landlord. 

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Question:

There was a huge fire in my building, and none of us are allowed back inside. What can we do to regain access to our apartments?

Answer:

If it’s not dangerous to enter the building, you have a right to go back in, says Sam Himmelstein, a lawyer at Himmelstein, McConnell, Gribben, Donoghue & Joseph, who represents residential and commercial tenants, and tenant associations.

If the Department of Buildings has put a vacate order on the building, on the other hand, nobody can get inside until the property is deemed safe. In some situations, the DOB will allow limited access, but the landlord will have to accompany you if you want to go in and retrieve your belongings. 

The process of repairing damage from a fire can drag on for quite a while, and renters who want to put pressure on your landlord to act quickly will be more effective if you band together and form a tenant association.  

Rent-stabilized tenants, though, have more power in this situation than market-rate tenants.

“If you’re a market-rate tenant, you can only get back into the building before your lease expires, and the landlord doesn’t have to renew it,” Himmelstein says. “If there’s only a month or two left on your lease, it may not be worth it to bother fighting your landlord to get back in.”

But for stabilized tenants, who have the protection of guaranteed lease renewal, there’s more reason to push back. One option at your disposal is to file a reduction of services complaint with the New York State Division of Housing and Community Renewal; if accepted, your rent will be reduced to $1 a month until you can move back into the building and the landlord applies to restore the rent.

Another option, which both market-rate and rent-stabilized tenants can pursue, is to bring an Housing Part action to housing court, to force the landlord to make repairs.

“The HP action brings in judicial oversight, and the landlord has some outside pressure to do the work,” Himmelstein says. “In one of our cases, a fire cleared out a building on Riverside Drive and the landlord signed a consent order to have everyone put back in by certain date. When they didn’t make the deadline, we gave some reasonable extensions, and in exchange they reimbursed the tenants’ legal fees.”

And filing an HP action can get tenants back more than their legal fees.

"In addition to reimbursement of fees, tenants could potentially negotiate stipends, which we did secure for the Riverside Drive folks—approximately $40,000 to be distributed among the tenants—and relocation expenses," says Jesse Gribben, associate at Himmelstein, McConnell, Gribben, Donoghue & Joseph. 

Finally, tenants could also sue their landlord for damages—but this means proving negligence, which may not be the reason a fire has occurred. 

“If you win, you can recover damages for lost property, but you have to prove that the landlord was negligent in causing the fire, and that’s not always the case,” Himmelstein says. “Some fires are caused by tenants; some are caused by lightning strikes. If you can’t prove negligence, you don’t have much of a claim.”

And keep in mind, one way to protect your property from a fire without having to go to court is by investing in a good renter’s insurance policy.

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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 shimmelstein@hmgdjlaw.com or call (212) 349-3000.