Can You Break the Lease if Your Condo May Flood?

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Can You Break the Lease if Your Apartment Might Flood?

Q: I live in a garden apartment in Park Slope with persistent drainage issues. During Hurricanes Henri and Ida, I spilled water on the door that leads to my bedroom. I bought a raised drain guard and a sump pump that plugs into a garden hose, but the pump couldn't keep up. Since I was at home, the damage was limited. But what if a big storm comes up 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 take care of the bigger drainage problems?

A: Your landlord essentially treats you like an employee of the building, relying on you to keep the water out at all times. You cannot be expected to rush home from dinner, work, or vacation during every northeast or major summer storm.

The maintenance of the property – and that includes that the water drains properly – is the responsibility of the landlord, not your responsibility.

"The landlord has an absolute duty to prevent water from entering, even if the climate changes," said Samuel J. Himmelstein, a Manhattan attorney who represents tenants. "You cannot ask a tenant to bear this responsibility."

If your apartment was flooded, you may have had reason to break the lease. Mr. Himmelstein advises tenants in flood-damaged apartments to terminate and leave their rental contracts, even if landlords threaten to abide by the terms of the contract.

But you are not in that situation. Instead, you are a sitting duck waiting for another storm. Write down your drainage concerns. Tell the landlord that if the patio drainage is not corrected immediately, you are concerned that your home will be flooded and ask the management company to make the necessary repairs. You could file an HP case with a housing court and a judge could force the landlord to do the job. You could withhold the rent, and if the landlord has proceedings against you for non-payment, a judge could award you a rent reduction.

Make enough noise and your landlord could do the job. This could come at a cost, however – your landlord may not offer you a new lease because landlords are not required to renew tenants' leases at market prices. While a landlord cannot do this in retaliation, it would be difficult to prove a motive. Of course, if the drainage problems aren't fixed, you don't want to stay in the apartment anyway.

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