Can You Break the Lease if Your Apartment Might Flood?

Can You Break the Lease if Your Apartment Might Flood?
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Q: I live in a Park Slope garden apartment with ongoing drainage issues. During hurricanes Henri and Ida, I was bucketing water away from the door, which leads to my bedroom. I bought a raised drain guard and a sump pump that hooks up to a garden hose, but the pump couldn’t keep up. Because I was home, the damage was limited. But what if a big storm hits when I’m not home? The management company told me to deduct the cost of the pump from the rent. But shouldn’t the landlord address the larger drainage issues?

A: Your landlord is essentially treating you like an employee of the building by relying on you to constantly keep the water out. You cannot be expected to rush home from dinner, work or vacation for every nor’easter or heavy summer storm.

Maintaining the property — and that includes making sure water drains properly — is the landlord’s responsibility, not yours.

“The landlord has an absolute obligation to prevent water from coming in, even if the climate is changing,” said Samuel J. Himmelstein, a Manhattan lawyer who represents tenants. “You can’t ask a tenant to bear that responsibility.”

If your apartment had flooded, you might have had grounds to break the lease. Mr. Himmelstein is advising tenants in flood-damaged apartments to break their leases and leave, even when landlords are threatening to hold them to the terms of the contract.

But you’re not in that situation. Instead, you’re a sitting duck, waiting for another storm. Put your drainage concerns in writing. Tell the landlord that you’re worried your apartment will flood if the patio drainage is not resolved immediately, and demand that the management company make necessary repairs. You could file an HP proceeding in housing court, and a judge could compel the landlord to do the work. You could withhold rent, and if the landlord pursues a nonpayment case against you, a judge could award you a rent abatement.

Make enough noise, and your landlord might do the work. But it could come at a cost — your landlord might not offer you a new lease, since landlords are not required to renew the leases of market-rate tenants. Although a landlord isn’t allowed to do this in retaliation, it would be hard to prove motive. Of course, if the drainage issues aren’t repaired, you might not want to stay in the apartment anyway.

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