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My illegal basement apartment floods again and again. What's my next move?

Astoria, NY |

My basement apartment is most likely illegal: it's more that 50% below curb-level, the addition isn't on the building's C of O, and since I moved in, 1 of my 2 means of egress has been sealed off. I don't have a lease and my landlord is a shady character (he's insisted I pay rent in cash about 6 months ago which he pretty frankly told me was to elude taxes). I've been here for 1.5 years and the apartment has flooded about 10 times due to rainwater backup and my landlord's washing machine malfunctioning. My apartment is moldy and it's obviously an electrical hazard. I've requested the causes of these floods be dealt with but nothing has been done. I'm out of patience! I want to move but I don't have the money unless I stop paying rent for at least 1 month. What are my options?

Attorney Answers 3


Your options are to stop paying rent for a month, and move. If you have a security deposit, he'll use that as your last month. If not, then he likely will not sue you since its an illegal apartment with a sealed means of egress.

If you'd like to discuss, please feel free to call. Jeff Gold Gold, Benes, LLP 1854 Bellmore Ave Bellmore, NY 11710 Telephone -516.512.6333 Email -

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Dear what are my options?

Illegal apartments are not suitable for residential use and do not meet housing and building code requirements for habitability. That is the reason your apartment floods when the rain comes, and the electrical wiring poses a hazard to your life.

In New York City, a tenant may very little assistance from the law. New York State law does not have a statute that gives a tenant the right to claw back rent paid to a landlord for an illegal apartment, although, theoretically, a tenant could sue under a claim of fraud or breach of the warranty of habitability. If you have rent receipts, you could prove you paid rent to a shady character or rented out an illegal apartment.

Your landlord never had the right to sue you for rent if you stopped paying, because the New York State Multiple Dwelling Law prohibits a landlord from maintaining a summary proceeding for rent when the landlord does not have a required residential certificate of occupancy. The landlord could eventually sue to evict you if you are served with a termination of tenancy notice and do not move out.

In any case, if you stopped paying rent now, it may take a while for your landlord to react. If so, you could likely move out several months later.

But since you do not know that the basement apartment is illegal, you should make certain. You could call 311 for an inspection. You could also call 311 to have the other conditions in the apartment inspected for violations of the Housing Maintenance Code.

You could also you could look up the building information at the Department of Buildings at:

And at the public website for HPD for reported violations at:

Good luck.

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.

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First, I would talk to the landlord. I would tell the landlord that I suspected the apartment was illegal, that the apartment does not appear on the C of O and that the conditions are so deplorable that you are now forced to expend time, energy and money to move. Tell him you want him to pay moving expenses in the form of a rent credit - start with 3-4 months and settle for 1-2 months. I would be careful in withholding rent unless you cannot settle -- if the landlord starts an eviction proceeding against you, your name will appear on the Housing Court's computer and this information is sold to tenant screening companies, so you may find it difficult to successfully apply for the next apartment (that's why my advice is always to try to work it out amicably first). You do not have to pay rent because the apartment is illegal (i.e. the C of O does not permit the use of the basement as an apartment). I would also be careful in calling for an inspection. Sometimes, if an inspection reveals an illegal and dangerous apartment a vacate order may be issued (it can be issued by HPD, DOB or FDNY) leaving you with minutes, literally, to gather what possession you can before you are essentially deprived of the use of your own apartment (until they adjusted the vacate order policies, vacate orders were issued for commercial buildings in Brooklyn that were illegally converted for residential use and caused the tenants a lot of grief whenever they called a governmental agency for help).

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