Landlord Not Providing Habitable Apartment Due To Hurricane -- Still Responsible For Rent?
November 2, 2012 10:49 AM   Subscribe

I’m currently in NY in an apartment without water, sewage, heat or electricity. I’m living elsewhere until my area gets these services back. As I understood it, an apartment without these sorts of things (not to mention the stench of sewage and sea water eating away at the belongings in the floor below and the mold that must be growing there – I think the tenants down there are simply walking away and not cleaning up) is considered uninhabitable. Aren’t renters, by law, not obligated to pay rent until these issues are fixed?

(And the landlord’s recourse is to file a claim against his insurance for not just the damage, but loss of income? Sure, there was a hurricane with a large storm surge, but I don’t see how this is any more out of his control than not having sewage or heat due to any other sort of problem in the building.) I don't think I'll be able to live here for at least a month.

(The landlord owns other properties not damaged, I'm not adverse to living there for a month, even though it will require moving in this mess and a long commute. I just can't see holding up my end of the lease [paying rent] when the landlord is unable due to crazy circumstances to hold up his end [providing a habitable apartment].)

My lease is the standard New York Blumberg residential lease form with a few riders, none of which pertain to this at all. Thanks, stay warm and stay dry, MeFites.
posted by anonymous to Law & Government (16 answers total) 1 user marked this as a favorite
IAAL, IANYL, this is not legal advice. The standard NY Blumberg lease I have says that you have no right to stop paying rent if services are stopped, and that if the landlord can't provide services because of circumstances outside his control, he/she doesn't have to do so. If you don't want to breach your lease you should talk to a NY attorney to make sure of your rights under your particular agreement.
posted by yogalemon at 11:02 AM on November 2, 2012 [2 favorites]

When I lived through this after Hurricane Ike (no water, sewage, electricity) in 2008, I still had to pay full rent here in Texas. I was without utilities for two weeks.
posted by shoesietart at 11:06 AM on November 2, 2012

IANAL but in reading the NY Tenant Laws, it seems you're free and clear to break your lease with 3 days notice in this situation:

"If an apartment is so severely damaged by fire or other circumstances not caused by the tenant that the apartment becomes uninhabitable, and the lease does not expressly provide otherwise, the tenant may vacate the apartment and cancel the lease on three days’ notice to the landlord. The tenant will be released from liability for subsequent rental payments. Real Property Law § 227. "

Again: IANAL.
posted by juniperesque at 11:07 AM on November 2, 2012 [3 favorites]

Usually there are exceptions for Acts of God/Nature. Pretty sure you still have to pay rent.
posted by Neekee at 11:14 AM on November 2, 2012 [2 favorites]

Do you have renter's insurance? Typically, you can make a claim against your insurance for "loss of use". They may or may not cover lodging while you are elsewhere. Also, if there is damage to your stuff (mold doesn't discriminate once it gets hold of something) you can make a claim on that too.

Lots of larger insurance companies have apps that you can download to your phone to file a claim.
posted by Ruthless Bunny at 11:21 AM on November 2, 2012

IANAL, but the term that you are looking at here is force majeure (acts of God/nature). You need to see what your lease and your local law says with regard to that term.
posted by vignettist at 11:27 AM on November 2, 2012

Most leases have exceptions called "Acts of God" clauses.

Your landlord is not at fault for the hurricane.

Pay your rent.
posted by dfriedman at 11:45 AM on November 2, 2012 [9 favorites]

I don't think that the "landlord is not providing habitable apartment" is the way to look at this.

In reality, Hurricane Sandy is the one making your apartment non-habitable.

You need to come at this from a different approach and realize your landlord, just like everyone else around you right now, is human and is probably trying to deal with this as best he/she can.
posted by ejazen at 12:06 PM on November 2, 2012

I should have been much more clear in my answer above. I don't think there's a provision that will help you not pay your rent. That provision above is only if you want to break your lease. Which would certainly solve your problem of not wanting to pay rent for an uninhabitable apartment. Your landlord is required to have insurance on the building, and it is likely to cover loss of income due to Acts of God. (If he doesn't... that's really his problem, not yours.)
posted by juniperesque at 12:13 PM on November 2, 2012 [1 favorite]

You can try breaking your lease since the place is uninhabitable, although I will not advise on the legality of that or what doing so will cost you in the future. But if you want to keep exclusive possession of the place during that time—keeping your stuff there and preventing the landlord from leasing it out to anyone else—it's unfair to expect that you shouldn't pay rent. You can have it one way or the other way but not both.
posted by grouse at 12:57 PM on November 2, 2012 [3 favorites]

Call your landlord, start by getting estimates for when the first floor will be repaired and ask for pro-rated rent for the days the apartment is uninhabitable (this may not be what either party is legally obligated to do, but it's a start at reaching an agreement that keeps your lease, if you want that). I wouldn't assume your lease is broken NOR would I pay any money before I made that call and consulted a lawyer. Those above who told you to pony up rent do not know your lease or NYC law.
posted by slow graffiti at 1:30 PM on November 2, 2012

I think the tenants down there are simply walking away and not cleaning up

It's a little soon for that, don't you think? Perhaps they'll come to clean when there's, say, electricity, starting tomorrow. Perhaps they can't get back in to Manhattan, since there's very few ways to easily get there.

You're jumping the gun here, sorry.

Those above who told you to pony up rent do not know your lease or NYC law.

You do not have a right to withhold rent as a first step, or generally even a second step. In general, you have a right to withhold rent after you have written to your landlord; documented the situation; had the landlord refuse to rectify; asked the City for intervention or an inspection. Withholding rent improperly invites eviction.

There may be conditions from this storm that means the building is uninhabitable. A number of buildings in Manhattan are likely to be described as such. That means that you will definitely not have to pay rent! Additionally, you will not be living there.
posted by RJ Reynolds at 2:06 PM on November 2, 2012

I don’t see how this is any more out of his control than not having sewage or heat due to any other sort of problem in the building.

Er, what? If my landlord refuses to fix a faulty boiler or repair plumbing, that is something they can control. Those problems are obviously confined to his/her property. The fact that public utilities have not yet been able to restore power and water to your apartment clearly is outside of the realm of things your landlord can control. Your premise is faulty.
posted by oneirodynia at 2:38 PM on November 2, 2012 [2 favorites]

I don't know NYC law, but even if you're reading tenant rights laws and your lease and it appears that you don't have to pay rent, don't stop paying unless a lawyer advises you that you can without recourse. I asked a similar question (different circumstances) and I thought the law/our lease was super clear that it was in our right to withhold rent for the days our apartment was inhabitable. But because I am not a lawyer, I missed a key part of the law and ended up having to pay the withheld rent and a late fee. It sucked and made me feel stupid—and it was a good life lesson. Never withhold rent until you're positive it's your legal right...and even then, use caution because not paying rent is the nuclear option.

(In my case, we didn't notify my landlady in writing and instead notified her with a phone call about the problem; logically that would get it solved more quickly yet meant we didn't technically give her proper notice so she didn't have to fix anything by any certain time.) I got a lot of tough love on my question about my rights as a tenant and now I realize that however unfair, the laws generally favor landlords. Again, unpleasant life lesson. Hope you stay warm and safe, though—I'm really sorry you were affected and hope finding another place to live in the meantime isn't a huge financial burden. Best of luck!
posted by thesocietyfor at 3:08 PM on November 2, 2012 [5 favorites]

I am a bit confused with all of this. So what you are saying is even though someone can not live in the apartment, (i am in the same boat btw) they still have to pay rent on said apartment. So I have to pay rent for where I am living now AND pay the rent on the apartment where I can not live??? That doesn't seem fair to me at all.

I understand this was not the landlords fault nor was it in his control to prevent, but why am I going to be required to pay 2 rents when I can only live in one?
posted by rob5482 at 8:59 AM on November 9, 2012

No, per juniperesque's link, you can give three days notice, break your lease and leave. You don't get to keep your apartment without paying rent, though.
posted by grouse at 9:38 AM on November 9, 2012

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