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Illegal basement

Larchmont, NY |

4 years ago I rented an apartment on the 1st floor in 2 family house on month to month basis. I wasn't aware that there was an illegal basement apartment in the building. We had a multiple problems when living there including rads, bed bugs, no hot water etc. We decided to move out 2 months ago. A friend of mine who is a licensed attorney just advised me that since there was an illegal basement in the building the landlord had no right to collect the rent from us for the entire time we lived there. Can i sue the landlord for all the rent I paid him? The family who lived in illegal basement moved out a month ago but I could prove that they lived there during my occupancy. Please advise.

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Attorney answers 3


Dear Larchmont Tenant:

Are you looking to verify the free legal advice from a friend? Why not request that your friend do this legal research for you?

In sum and substance, New York law, does not provide for a claw back for rent paid to an owner who may not have been entitled to sue for rent in the instance where a tenant did not pay. That is the general rule. Nothing prevents a former tenant from prosecuting an affirmative lawsuit based on a claim of the breach of the statutory Warranty of Habitability. That is an uphill climb since you did not assert the breach of the Warranty while a tenant and when you paid rent. But only your own attorney could evaluate your facts and tenancy history and guide you to making a decision. Generally, even when a landlord rents a dwelling in violation of an existing certificate of occupancy, if the C of O violation is not in the tenant's dwelling space or did not in and of itself, affect "habitability" the breach of the C of O will not ordinarily sustain a claim to recover rent previously paid.

Since your tenancy was month to month, if not satisfied with the maintenance of the premises, or the attention paid to your demand for repairs and for services, you always had the power to end the tenancy on your own volition and not experience the discomfort of living in a building where the landlord gave you less than expected for the rent you paid.

The answer provided to you is in the nature of general information. The general proposition being that you should try to avoid a bad outcome if you can.


Unfortunately, NY does not have any laws that allow you to recover rents already paid to the landlord.

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Both Attorney Smollens and Chertok are correct. You cannot get the rent you paid back. In addition, the mere fact that an apartment has no CO (is illegal) in your building does not mean that you would not be required to pay rent, even if that apartment that did not have a CO was the apartment that you were living in.

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