October 16, 2018

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That Apartment You Rented? It’s Not Available. Take This One Instead.

That Apartment You Rented? It’s Not Available. Take This One Instead.
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Ask Real Estate

What can renters do when it turns out that their new home is legally uninhabitable?

CreditNadia Pillon

Q: My boyfriend and I signed a lease for an apartment in a new building in Williamsburg last summer. Three days before our move-in date, management told us the apartment would not be available until October because it did not have a temporary certificate of occupancy. They put us in a smaller unit on a lower floor, with our belongings spread out between the two units. Other tenants got the same bait and switch, and are also living in smaller, temporary units. What can we do?

A: You should not have to wait a year to move into your apartment. Check your lease to make sure your landlord countersigned it. If the landlord did not sign a market-rate lease, then it was never effective and you are not bound by its terms.

If it was countersigned, see if it includes a provision saying that the landlord is not obligated to give you the apartment you selected, as it is possible such a clause is in there giving the landlord more leverage.

But even if the lease has such a disclaimer and was countersigned, you should still be able to get out of it, considering that your apartment has not been available for so long. “The tenant has a claim to get out of the lease,” said David Hershey-Webb, a lawyer who represents tenants and a partner at the Manhattan law firm Himmelstein, McConnell, Gribben, Donoghue & Joseph. You could take the landlord to housing court to break the lease and, if you do not get your security deposit back, sue for it in small-claims court.


It’s also possible you shouldn’t be paying rent at all. If the building does not have a certificate of occupancy, then you and your neighbors should consult a lawyer about withholding rent, Mr. Hershey-Webb said.

As outlandish as your situation may seem, you are not the first tenant to find yourself signing a lease on an apartment that is not ready for habitation.

“We’ve put people in hotels for weeks,” said David J. Maundrell III, executive vice president of new developments in Brooklyn and Queens for Citi Habitats. He said such incidents are less common now than they were a few years ago, when the rental market was more heated. But even in those days, delays were a matter of weeks, not months. “You should not be delayed more than a month,” Mr. Maundrell said.

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A version of this article appears in print on , on Page RE2 of the New York edition with the headline: That Apartment You Rented? It’s Not Ready. Take This One Instead.. Order Reprints | Today’s Paper | Subscribe





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