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Our landlord is doing renovations that will shrink the size of our apartment. What can we do?

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Question:

Our landlord is doing a major renovation, combining apartments (for their own residence), which will remove the basement laundry facilities from our building, and also eliminate a closet from our apartment. Do we have any legal recourse to prevent these renovations from happening before the end of our lease? And if they take away our laundry amenity (and alter our apartment), is that sufficient to allow us to break our lease without a penalty?

Answer:

As in many landlord-tenant disputes, your rights in this situation will depend heavily on whether your apartment is rent-stabilized or market rate, says Sam Himmelstein, a lawyer who represents residential and commercial tenants and tenant associations.

"If the apartment is stabilized, you don't even have to give the landlord access to your apartment in order to remove the closet," Himmelstein explains. "Most stabilized leases mention access [for repairs], but do not require tenants to give access to accommodate renovations that are being done for the landlord's own benefit.

Furthermore, in a rent-stabilized apartment, both the loss of your closet and of your in-building laundry amenity could qualify you for a rent reduction, on the grounds that there's been a reduction in services. "The remedy here is to file a reduction of services complaint, and your rent may be rolled back or frozen, and the DHCR will be ordered to restore the service," says Himmelstein. "Sometimes the DHCR will lower tenants' rent by the amount of cost they estimate the tenant will incur as a result of having to go elsewhere for a service, such as your in-building laundry." For instance, Himmelstein recently worked with a building that gave tenants a $165/month rent reduction after the loss of access to their building's pool, basing the rent reduction on the estimated price of a gym membership in the neighborhood.

If your apartment is market-rate, however, you're looking at a very different scenario. While you still don't legally have to give the landlord access in order to do the renovations (unless your lease has a rare, specific clause stating otherwise), you'd have to prepare for the likelihood that they'd decline to renew your lease the next time it's up for renewal.

And unless access to an in-building laundry room is specifically noted in your lease, there's not much you can do about them moving it to another building. (If it is, however, the removal of the laundry room would constitute a breach of the lease, which would be legal grounds for a rent reduction.)

As for their renovation eating up your closet, says Himmelstein, that constitutes what's known as a partial actual eviction—since you're no longer getting the same space you agreed to and have been paying for—and could legally entitle you to a rent reduction, or even a potential rent suspension. You can reach out to your landlord first in writing, letting them know that their plans would constitute a partial actual or constructive eviction, and requesting a rent reduction. Failing that, says Himmelstein, your only real option in a non-stabilized unit would be to withhold rent and wait for your landlord to take you to housing court, which would put you at the mercy of the judge's decision on the matter, as well as likely land you a spot on the tenant blacklist.

It's unfair, to be sure, but yet another example of the extensive protections offered to stabilized versus market rate tenants.

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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.

 

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