No Certificate of Occupancy. What are my options?
December 23, 2013 1:46 PM   Subscribe

My out-of-state relocation to Brooklyn, NY is suffering from complications due to a delayed Certificate of Occupancy. What should I do? More details below the cut.

I'm in the process of an out-of-state relocation (for work) to Brooklyn, NY. I am currently in temporary housing (provided by my new employer) and my possessions are in storage.

In November, I signed a lease, starting January 15, for an apartment on the top floor of a new construction building. After I signed the lease, which included the rider below, the building manager notified me that they do not yet have a Certificate of Occupancy for the top floor. He hopes this will be resolved by January 15; however, it is looking less and less likely. My temporary housing relocation support ends on January 31 and my storage on January 15.

In the event that the building does not obtain the Certificate of Occupancy in time, the building manager has said I can move my possessions into the apartment, but would have to "camp" in another apartment (on a floor for which they do have a Certificate of Occupancy) until the situation is resolved. If I do this, I would pay rent starting on January 15. I am not sure if I will have any access to my possessions. I am also unsure of what I would use as furniture (e.g., a bed) during this period, or whether I can get internet service since I will not have a lease for this alternative apartment and will be residing there for an unknown period of time (I regularly work from home, and need an internet connection to do so).

My questions are:

1) Has anyone else experienced a situation like this?

2) Does anyone have suggestions for what I should do? For example, should I see if my employer will extend my temporary housing and storage? Or should I do as the building manager suggests?

3) If the general consensus is "find a Brooklyn real estate lawyer," does anyone have recommendations?


The rider:

Delay in Giving Possession
This paragraph replaces paragraph 6 of this Lease. A situation could arise which might prevent Owner from letting Tenant move into the Apartment on the beginning date set in this Lease. If this happens from reasons beyond Owner's reasonable control, Owner will not be responsible for Tenant's damages or expenses and this Lease will remain in effect. Tenant understands that this Building is being newly constructed and that there may be a delay in the completion of construction, the issuance of a temporary or permanent certificate of occupancy, or in scheduling access to the service elevator required before Tenant may obtain possession of the Apartment. Tenant agrees that these are examples of delays beyond Owner's reasonable control. However, in case of a delay, this Lease will start on the date when Owner is able to allow Tenant to move in. Tenant will not have to pay rent until the move-in date which Owner will give Tenant by written notice at least fourteen days in advance, or the date Tenant moves in, whichever is earlier. If Owner is not able to allow Tenant to move in until a day in a later calendar month, the ending date in Article 2 will be changed to the last day of the calendar month after Tenant is able to take possession plus the whole number of years of the original term without regard to any days which are only part of the initial month, except that if Tenant is not able to move in until a day in a later calendar month than the first day of that month, then the term will end on the day before plus the whole number of years of the original term without regard to any days which are only part of the initial month (For example, (a) if the beginning date in paragraph 2 is August 15, 2013 and the ending date is August 31, 2014 and the Owner is not able to allow Tenant to take possession until August 28, 2013 the ending date would remain unchanged at August 31, 2014; (b) if the beginning date in paragraph 2 is August 15, 2013 and the ending date in paragraph 2 is August 31, 2014, and the Owner is not able to allow Tenant to take possession until September 3, 2013, the ending date would be September 30, 2014; (c) if the beginning date in paragraph 2 is August 15, 2013, and the ending date in paragraph 2 is August 31, 2014, and the Owner is not able to allow Tenant to take possession until October 1, 2013, the ending date would be September 30, 2014. If Owner does not give Tenant written notice of the move-in date that is within 45 days of the beginning date of the term of the Lease as stated in Article 2, Tenant may tell Owner in writing that Owner has 15 additional days to let Tenant move in, or else the Lease will end. If Owner does not allow Tenant to move in within those additional 15 days, then the Lease is ended. Any money paid by Tenant on account of this Lease will then be refunded promptly by Owner.
posted by unhappyprofessor to Law & Government (10 answers total) 1 user marked this as a favorite
Ok, i'm gonna preface this by saying i'm on the west coast and a lot or really all of my local lanlord tenant act/city ordinance/state rental laws stuff doesn't apply to you. I'm merely posting this because i've seen lots of similarities up and down the west coast, even in cities with weird oddly specific laws like san francisco.

And the reason i'm bringing this up, is that in a lot of places a lease for a place without an occupancy permit doesn't mean shit. A landlord signing a lease with someone showing their intention to rent it before they have one isn't just "counting your chickens before they hatch", it's pretty much like sitting in the drivers seat of a car while drunk as hell with the keys. It's too easy to argue you were intending to break the law. Just because someone printed out some words on a page and you both signed it doesn't make it a legally enforceable contract.

What i'm getting at here is that there probably isn't much you can do but wait, but i'd REALLY want to check with a local tenants rights organization or housing lawyer ASAP because your lease might not be worth the paper it's written on and you may very well be able to walk now and demand your money back, not when it arbitrarily says you can.

It's such slumlord BS to sign a lease on a place you can't even legally occupy. I've heard a lot of stories about NYC/5 boroughs landlords doing stuff like that constantly. Ranging from it just being places that would never in a million years pass inspection, to places that actually don't have permits at all. It's totally a thing that happens all over the place.

I can't say definitively that they signed a meaningless lease, obviously, but i'm very very suspicious.

You need to do some offline research on this one and make some calls. I would also be INCREDIBLY sketched out by the whole "oh, you can stay in this other apartment with no lease until yours is ready". That sounds like a ticket to homelessness on their whim. What if someone else already has a lease on that apartment? You could seriously show up home from work to your sleeping bag and laptop you had left in the "temporary" apartment being stolen or in the garbage and just be SOL on anywhere to stay because you didn't have the keys to the place you had put all your stuff in. This is not some unrealistic scenario. Your ass can get paddled as hard as you'll lean over and let them here, and all the "oh we'll just make a verbal agreement!" stuff isn't worth shit.

I haven't experienced a situation exactly like this, no, but i've seen enough vaguely similar stuff that my brain immediately went "SHIELDS UP, RED ALERT" and it gave me the heebie-jeebies. It just radiates sketchiness. It would be one thing if you had like, prepaid a condo in a building that's still under construction or in the process of being converted to condos or something... but signing a lease on an apartment with no occupancy permit? skeeeetchhhh. And all their "suggestions" sketch me out too. Not just because they sound potentially a bit extra-legal which is just my out-the-ass armchair pontificating(but as i said, something you should REALLY investigate. maybe it checks out, maybe it doesn't), but because it just doesn't sit right in the gut sense.
posted by emptythought at 3:04 PM on December 23, 2013 [2 favorites]

Maybe try checking with a tenant organization like this one, which has a hotline:
posted by three_red_balloons at 3:06 PM on December 23, 2013 [1 favorite]

I can recommend a tenant law attorney I've used in NYC. If you'd like that information, memail me.
posted by ocherdraco at 3:11 PM on December 23, 2013 [1 favorite]

Response by poster: Just to clarify, it is new construction. (I should have made that clearer, sorry!) All but the top two floors are completed and have a Certificate of Occupancy; the top two floors are completed but have no Certificate of Occupancy yet.
posted by unhappyprofessor at 3:20 PM on December 23, 2013

You're going to get a lot of non-specific information here that does not pertain to nyc real estate. I would strongly encourage you to ignore much of the responses here and call NYC's 311 line and ask them who you need to speak with to resolve this issue.
posted by dfriedman at 3:24 PM on December 23, 2013 [4 favorites]

Let your employer know what is going on. They might help pressure the building to get that shit in order, or they might be able to advance you cash or extend your housing/storage combo.
posted by vrakatar at 5:31 PM on December 23, 2013 [1 favorite]

You're going to get a lot of non-specific information here that does not pertain to nyc real estate

I'd actually recommend the tenant org (based in NYC) I mentioned above over 311--I used it for a rental issue in Brooklyn myself, and found them quicker to help than gov channels.
posted by three_red_balloons at 5:54 PM on December 23, 2013

If this is a large building, created by a major developer, consider contacting the NYC public advocate's office.

I also would, at the very least, contact the building manager and tell him that it is completely unreasonable for him to require you to pay anything during the time when the building has no C of O.

A reasonable solution to this situation is for him to mitigate the inconvenience caused by his company's failure to keep their schedule by allowing you whatever access is safely possible to your apartment, ideally at any time you want, and to allow you to put your belongings in it and keep them there, but not sleep there until the C of O is final. And you shouldn't have to pay a dime other than your deposit until that C of O or a TCO is issued.

His terms are ridiculous. You made a deal, they screwed up. You're already out of pocket if you have to find somewhere else to sleep. Charging you rent is an insult.
posted by MeanwhileBackAtTheRanch at 6:35 PM on December 23, 2013 [2 favorites]

In the rider what does "If this happens from reasons beyond Owner's reasonable control," mean?

Seems to me that if the owner's job is to manage construction, setting an achievable schedule is within their reasonable control.
posted by MeanwhileBackAtTheRanch at 6:38 PM on December 23, 2013 [2 favorites]

I believe you read the rider incorrectly and you only start paying rent once the C of O is issued and you move into the unit you contracted for.

That said...

You should NEVER have signed a lease that was so beneficial to the owner, as if having a C of O is not his responsibility. Hogwash!!!

I too think your lease might not be enforceable and that a strongly worded certified letter will get you your money back.
posted by jbenben at 7:33 PM on December 23, 2013 [3 favorites]

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