Neighbor's toilet water is leaking into my home. Landlord doesn't care.
December 3, 2013 8:38 AM   Subscribe

Brown water from the apartment upstairs occasionally leaks into my apartment and its light fixtures. The landlord and super won't fix the plumbing until that tenant moves out. What can I do about this? Withhold rent? Break my lease? Something else? I understand that YANML, but some help with NYC tenants rights would be good right now.

Brown water from upstairs fills our light fixtures and leaks down the heat pipe and walls every few weeks, and I can't take it anymore.

When this happened about two months ago, the (newish) super told us it was because the upstairs neighbor's toilet overflowed. The super is denying that it's a plumbing problem and insists that the neighbor is just making their toilet overflow...on purpose? Through neglect? No idea. But, basically, he has told us that there's nothing he can do about it. In our bathroom, the floor and walls are all tile. So it's hard to imagine how water from an overflowing toilet would easily get past that in a matter of seconds, which is how quickly our light fixtures fill up when something like this happens. When asked about that, the super said, "Water always finds a way." I don't know if the neighbor's bathroom is as well-tiled as ours, though, since his family has had that lease since the 90s (from what I was told by the previous super), and the landlord won't renovate until this neighbor leaves.

When it happened again a few weeks ago, the neighbor came down to tell us that it was an accident and that he's having plumbing problems, but that he can't ask the super to fix it because the landlord was trying to evict him.* He told us he wasn't doing it on purpose, he's very sorry, etc.

Then it happened again tonight, and the super basically just gave the ol' "What are ya gonna do?" shrug and said he'll let the landlord know that we're unhappy.

So what can we do? If we decide to leave before the end of our lease, could we reasonably expect our deposit back? Could we withhold rent or subtract from rent the cost of the dozens of lost light bulbs and stress of living in someone else's toilet water? Is there some tenants-rights or health-code authority we could contact to help fix this problem? Are we just going to have to suck it up until our lease ends?

Things to note:
1) Once again, I'm in New York City, so NYC laws apply.
2) This has been a problem since we moved in. At one point, the damage was so bad that the ceiling collapsed in the bathroom.
3) For the first few months, the landlord told us it was bath water from this neighbor's old tub. But then the plumbers discovered a pipe leaking from one of the top floors. We had a few problem-free months after that was fixed, but the brown water returned this summer.
4) I'm pregnant and expecting to deliver two months before our lease is up. Exposing a baby to this is less than ideal. So if there's a way to get out earlier with less damage to our own finances, I'd love to hear about it.
5) This landlord is basically the only reference we'd have for future NYC apartments, so, unfortunately, it's important not to burn this bridge.
6) Other than this problem and the occasional noisy nights (just a lot of loud talking at all hours), we have nothing against this neighbor and are not interested in adding to his eviction problems.

*This is why I'm posting anonymously. The landlord has taken him to court.
posted by anonymous to Law & Government (22 answers total) 1 user marked this as a favorite
If you absolutely need this landlord as a reference, you'll have to live out the lease.

One thing you can do is to call the super and say, "this needs to be fixed in 72 hours, or I'll call a plumber to address it myself and deduct the charge from my rent."

You can also call 511 to see what they have to say about it. They may send an inspector out and force your landlord's hand.

Another option is to secure a new place and your reference ASAP, then move.

As for your neighbor's eviction problems, that ain't YOUR problem and you have a right to "quiet enjoyment" of your home.

NYC is very tenant friendly, so things are on your side.

Your first stop is 511 to get advice.
posted by Ruthless Bunny at 8:44 AM on December 3, 2013 [1 favorite]

If we decide to leave before the end of our lease, could we reasonably expect our deposit back?

Your first step should be to take a look at the lease you signed. It may have the answer to this question.

Could we withhold rent or subtract from rent the cost of the dozens of lost light bulbs and stress of living in someone else's toilet water?

Rent abatement only works retroactively in NYC and has to be granted by the court. Do not withhold any amount of rent; you'll end up with two problems instead of one.
posted by griphus at 8:44 AM on December 3, 2013 [3 favorites]

Also, the landlord's responsibility is to you, the super's responsibility is to the landlord. You don't really have any way of threatening the super -- he's already being sued and evicted by his employer -- so going after him is pointless.

You may be able to pay him to fix the problem, though. The legality of that is beyond me, but paying the super yourself to get him to actually do his job is a long-standing tradition with shitty supers.
posted by griphus at 8:48 AM on December 3, 2013

You can also call 511 to see what they have to say about it.

I assume you mean 311, as 511 is traffic/transit notifications.
posted by elizardbits at 8:52 AM on December 3, 2013 [5 favorites]

I'm sorry, I meant tell the LANDLORD that the problem needs to be solved or you'll call your own plumber.

If your upstairs neighbor is amenable, arrange to have a plumber come in to assess the problem. If it IS a plumbing problem, then you can show it to the super and landlord and say, "it's not the upstairs neighbor causing problems, it's a plumbing issue, solve it or I'm moving out due to the inhabitability of the apartment."

Thank you Elizardbits, I DO mean 311!
posted by Ruthless Bunny at 8:54 AM on December 3, 2013

You're getting the wrong advice.

This isn't a plumbing issue, this is a Health and Safety Issue

Just call 311. I forget now what agency, but you can definitely report this and get an inspector out ASAP.

You should check with your doctor, but I'm 100% certain that having raw sewage dripping into your apartment is a huge health concern, especially for pregnant women and infants.

I'm sure you could get out of this lease if you get proactive.

Have you been documenting everything, taking pictures of the leaks, etc??

Not to freak you out, but light bulbs are the least of your worries with raw sewage dripping into your apartment.

Good luck.
posted by jbenben at 9:13 AM on December 3, 2013 [9 favorites]

If it reassures you at all, "brown water" doesn't necessarily mean "raw sewage". My upstairs neighbor had her bathroom sink overflow onto the floor recently; the water that came out through my smoke detector was brown due to rust and grime picked up on its way through the floor.
posted by Johnny Assay at 9:21 AM on December 3, 2013 [7 favorites]

I love Ruthless Bunny, but please please do not pay for a plumber or otherwise start trying to fix/diagnose or authorize work on infrastructure that does not belong to you.

- You can get your apartment declared inhabitable through the city, because it IS, and that will get you out of your lease. It might even get you relocated at the expense of the landlord?? Look into this.

Do you have renter's insurance? Because that might come into play here, too.

Besides calling 311, you can also get ideas/assistance from your local fire station - along with the Building Department, the FDNY has the ability to declare a structure unsafe. Just walk into your local station, explain the situation, and ask their advice.

In no way shape or form should you pay anyone to fix anything in this situation. It sounds like a very expensive and complicated problem involving multiple units, which is likely why your landlord hasn't fixed it already. The most important reason you can not get involved in the repair process, however, is because you do not own this building and do not have the authority to commission a repair of this magnitude.

Put your energy on getting out of your lease and keeping your family safe.
posted by jbenben at 9:31 AM on December 3, 2013 [1 favorite]

I'm pretty sure the water from an overflowing toilet and the OP is pregnant.

That makes this sewage.
posted by jbenben at 9:33 AM on December 3, 2013

Call 311. Right now.

If you want to relocate, just give your notice and leave. This is your health and your future baby's health. Meet with a local lawyer if you are concerned with legal consequences. Take pictures of damage, record times of phone calls to landlord/super.

I've moved a handful of times in the city and I've never had a new landlord contact an old one, just run my credit and ask for proof of income. YMMV (though I think an explanation of the situation would suffice).
posted by melissasaurus at 9:43 AM on December 3, 2013 [2 favorites]

If you'd like to memail me, I can give you the name of a tenants rights attorney I used and really liked here in NYC.
posted by ocherdraco at 10:00 AM on December 3, 2013 [1 favorite]

If you're worried that the old landlord would skunk your chances at a new place, why not take some pictures or video of the brown stuff dripping from the ceiling. Then you can tell your side of the story if needed.

Might be good to document this no matter what happens.
posted by JoeZydeco at 10:07 AM on December 3, 2013 [1 favorite]

Here 'a another very very good reason to talk to the FDNY and the Building Dept...

- This water damage has been accumulating for at least a year, likely (much?) longer.

- It's possible there is structural damage. Toilets, tubs, and sinks are heavy. It's not inconceivable the floor above your apartment could collapse.

I have construction experience and I'm from NYC. I would call in inspectors at this point. For real.

Incidentally, the FDNY can do an inspection immediately, if you ask them to assess the risk.

You should do this ASAP. Don't wait. Likely it's fine, but after a year - maybe not. Maybe not.

Call the lawyer that ochedero mentioned, too. If you pay a few hundred dollars for a strongly worded letter that gets you out of this mess it will be worth it!!

Again, good luck!!
posted by jbenben at 10:49 AM on December 3, 2013 [1 favorite]

Another hazard: If this stuff is getting into light fixtures, you have a potential- and very real- fire hazard.
posted by drhydro at 11:33 AM on December 3, 2013 [1 favorite]

I've found, on a couple of occasions in NYC and the Bay Area, that after my initial friendly inquiry to a landlord was brushed off, writing a letter (part of legal documentation) citing the section of the rental law (which is posted online) being broken brought in repairs relatively quickly. Other posters' suggestion of calling 311 will have a similar effect--the threat of legal enforcement. If he doesn't respond to this, start looking for a new place. And definitely send a letter in writing or email as documentation of the problem.
posted by at 11:57 AM on December 3, 2013

IF you do decide to withhold rent for any reason, put the withheld rent into an escrow account--don't just not pay it. That protects you and your credit. You should also inform the landlord what you're doing and why, of course.

A tenant lawyer can advise you better. I am not a lawyer.
posted by elizeh at 1:39 PM on December 3, 2013

IANYL, but I agree with elizeh's advice about placing withheld rent in an escrow account. Just open an account at a bank, and deposit the amount of rent in that account. And of course, let your landlord know you are doing this.

I did this many years ago, in NYC. The landlord then sued me for non-payment of rent. I went to court, representing myself, and just explained to the judge what the problem was that the landlord was not correcting. The judge ruled in my favor, and the work was finally done.
posted by merejane at 4:23 PM on December 3, 2013

I don't know jack about NYC laws so I can't advise on that, but I've had two apartment floods and this kind of thing is absolutely terrible to have happen on your property. Rogue water is no apartment's friend--and your super/landlord's slacking on this will bite them in the ASS.

At the very least, move everything you love as far away from the water leakage as possible.
posted by jenfullmoon at 6:59 PM on December 3, 2013

griphus may know better, but I seem to recall that NY, or NYC in particular, is one of the jurisdictions that allows repair and deduct and rent withholding. Repair and deduct is for repairs that would cost less than one month's rent; the tenant pays for work, done by suitably certified uprofessionals, and deducts the cost from the next month's rent, providing relevant certifying documentation. Rent witholding is for repairs that would cost more than one month's rent. You have to determine what proportion of your apartment is made uninhabitable by the issue, and then deduct that proportion from your rent until the repairs are made. General best practice is to document everything very well, give landlord a "reasonable" amount of time to fix the problem before witholding rent, notify landlord that you are witholding rent and why, and setting aside that money in some sort of escrow is likely a good idea to cover your bases. The way this typically works legally is that the landlord can go to small claims court and ask to evict you for nonpayment of rent, but repair and deduct and rent witholding (done not too poorly) are valid legal defenses for a tenant in that situation, meaning that the landlord's application to evict you would be denied.

If this is an option you decide to use, do first check with a local legal aid, tenant lawyer, tenant's union, or tenant's rights group that my info is correct (it was a few years ago now that I was researching tenant remedies for repairs and various legal regimes for tenancy law, but at the time there were only four US states that had not adopted uniform state law following the implied warranty of habitability notion, which allows rent witholding in the sense of it being a valid legal defense against eviction; NY state might have been one of those exceptional states, but NYC itself has relatively tenant-friendly rental laws overall), and for more specific advice and assistance on how to go about rent witholding effectively.

But also, NYC should have buiding and/or bylaw enforcement inspectors who can come inspect your apartment, levy fines on your landlord for not fixing stuff, etc. 311, legal aid, tenants' rights groups, etc. can all help you find more information about options for enforcing maintenance standards in NYC. Gray/brown water leaking into your fixtures and bathroom from upstairs bathroom on a repeating basis is definitely a violation of habitability standards - anywhere in North America, but especially in NYC where you have some of the strongest standards around.
posted by eviemath at 9:03 PM on December 3, 2013

I am a NYC tenant attorney, but I am not your NYC tenant attorney. This is not legal advice, just some general statements about repair issues in NYC.

Before withholding rent, a tenant should familiarize herself with blacklisting, where tenants who are sued in housing court are reported to tenant screening bureaus. Before breaking a lease, a tenant should consider whether she could, in the worst case scenario, afford to pay the rent for the remainder of the lease term. (There is also some bad caselaw about a landlord's duty to mitigate damages if a tenant breaks their lease.) Housing Court Answers has a very comprehensive page with information and landlord/tenant law in NYC, including a list of private attorneys. There are lots of fact sheets and guides on the Housing Court Answers website and about how to get repairs (311, letters to landlord, HP actions, etc.).
posted by Mavri at 8:07 AM on December 4, 2013 [1 favorite]


NYC actually has half decent tenant protection mechanisms (though the blacklist is a real concern). But you have to actually use them for them to work, not make up your own self help based on misinformed internet commenters speaking from their vaguely remembered experiences often in other jurisdictions.

311 is a great place to start and there are also plenty of resources for free or low cost landlord tenant legal services. Please start with 311 and legal advice and urgently.
posted by Salamandrous at 11:19 AM on December 6, 2013

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