As of Feb 3rd I have not been able to live in my apartment, which is an illegal one, due to a boiler fire. My landlord has no insurance so the boiler has not been fixed and the apartment is not able to be lived in due to no heat or hot water. I paid February's rent on the first of that month plus I also had to stay in a hotel for three nights because of this fire. Can I recover that money and my security deposit? (As of today, March 29th, I am still not able to be in my apartment).
Real Estate Attorney
The apartment is not habitable. Therefore, pursuant to the law you have been constructively evicted. You should be able to have your security deposit returned together with rent for those days that you have not been able to stay in the apartment.
Landlord / Tenant Lawyer
Dear What are my rights regarding monies paid toward an illegal apartment?
Perhaps I may help. You should explain your belief that the apartment is an "illegal one." The general rules relating to penalties imposed upon a landlord for renting an illegal apartment are located at New York State Multiple Dwelling Law section 301:
"...Sec. 301. Certificate of compliance or occupancy.
1. No multiple dwelling shall be occupied in whole or in part until the issuance of a certificate by the department that said dwelling conforms in all respects to the requirements of this chapter, to the building code and rules and to all other applicable law, except that no such certificate shall be required in the case of:
In addition, at New York State Multiple Dwelling Law section 302:
Sec. 302. Unlawful occupation.
1. a. If any dwelling or structure be occupied in whole or in part for human habitation in violation of section three hundred one, during such unlawful occupation any bond or note secured by a mortgage upon said dwelling or structure, or the lot upon which it stands, may be declared due at the option of the mortgagee.
b. No rent shall be recovered by the owner of such premises for said period, and no action or special proceeding shall be maintained therefor, or for possession of said premises for nonpayment of such rent.
c. During such period the department in charge of water supply shall not permit water to be furnished in any such dwelling or structure and said premises shall be deemed unfit for human habitation, and the department of health or the department charged with the enforcement of this chapter shall cause them to be vacated.
2. The department may cause to be vacated any dwelling or any part thereof which contains a nuisance as defined in section three hundred nine, or is occupied by more families or persons than permitted in this chapter, or is erected, altered or occupied contrary to law. Any such dwelling shall not again be occupied until it or its occupancy, as the case may be, has been made to conform to law.
In addition, at Multiple Dwelling Law Section 302-a (3) (d):
d. If a resident voluntarily pays rent or an installment of rent when he would be privileged to withhold the same under subparagraph a, he shall not thereafter have any claim or cause of action to recover back the rent or installment of rent so paid. A voluntary payment within the meaning hereof shall mean payment other than one made pursuant to a judgment in an action or special proceeding.
New York law also provides statutory relief to a tenant whose housing has been damaged by a fire:
New York State Real Property Law section 227 provides that:
"...Sec. 227. When tenant may surrender premises.
Where any building, which is leased or occupied, is destroyed or
so injured by the elements, or any other cause as to be
untenantable, and unfit for occupancy, and no express agreement
to the contrary has been made in writing, the lessee or occupant
may, if the destruction or injury occurred without his or her
fault or neglect, quit and surrender possession of the leasehold
premises, and of the land so leased or occupied; and he or she is
not liable to pay to the lessor or owner, rent for the time
subsequent to the surrender. Any rent paid in advance or which
may have accrued by the terms of a lease or any other hiring
shall be adjusted to the date of such surrender..."
If you feel that the rent for February 2012 and your out-of-pocket expenses are the responsibility of the landlord, you should file a claim in your local court for the money damages you believe you are owed due to the landlord's breach of your lease (which would include your security deposit), fraudulent rental, and constructive eviction.
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.
You should send a notice to the landlord demanding the return of the deposit and payment for your expenses. If the landlord fails to do so, then you should file a lawsuit against the landlord.
The above answer is only for information. This answer and any response does not create an attorney-client relationship between the parties and the communication is not privileged and confidential. The best course of action is to consult with a lawyer about your specific case. If you need to contact me, please call at 212-537-6936 or email at firstname.lastname@example.org