How to Handle Tenant Who Alters Apartment Without Consent
Tenants sometimes treat their apartments as if they own them, making alterations without your consent. For example, a tenant may remove the existing kitchen cabinets and install his own. This could cause big problems, especially if the tenant’s alterations aren’t done properly. If the tenant makes structural alterations without a permit, you could get hit with a violation from the DOB.
Can you evict a tenant who alters an apartment without your consent—or at least get him to put the apartment back to the way it was? Yes, if the following conditions are met:
1. The lease bars alterations without your consent;
2. The alterations were extensive enough to constitute a “substantial lease violation;” and
3. You didn’t “waive”—that is, give up—your right to object to the alterations.
For a rent-controlled tenant without a lease, you can use the rent control eviction law to meet the first condition. Here’s what to do if you discover that a tenant has made alterations without your consent.
Examine Tenant’s Lease
Examine the lease, if one exists, to see if it bars the tenant from making alterations. If it does, you can go to court to evict the tenant for violating his lease. Fortunately, most standard form apartment leases specifically bar tenants from making alterations without your consent.
If the lease doesn’t bar tenant alterations, you still may have a shot at an eviction or getting a tenant to remove the alterations. You may get the courts on your side if you can show that the tenant’s actions caused permanent damage to the apartment. But you have a much better chance of winning your case if the lease forbids the tenant from making alterations.
Also, before going to court, be sure to check that a prior owner didn’t give consent to the tenant’s alterations. In one case, a court found that a prior owner had given consent to a renovation, thus proving waiver. The current owner sued the tenant, seeking removal of a partition the tenant had constructed in her apartment, as well as discontinuance of the tenant’s part-time use of the apartment for her psychology practice office [106 & 108 Charles LLC v. Hohn, June 2012].
Suing a rent-controlled tenant. If the apartment is rent-controlled and the tenant doesn’t have a lease, you can still sue a tenant who makes extensive renovations. The rent control eviction law says you can seek a tenant’s eviction if the tenant violates a “substantial obligation of his tenancy.” Courts have found that rent-controlled tenants who make extensive alterations without the owners’ consent have violated a substantial obligation of their tenancies.
In one case involving a rent-controlled tenant living in a penthouse apartment with a rooftop terrace, a court found that she didn’t have a right to maintain the type of garden she had installed on the rooftop. Without the owner’s permission, she had maintained a “jungle” consisting of earth, trees over 10 feet tall, and planters weighing more than several thousand pounds each, as well as an aluminum shed. The court ruled that the garden didn’t comply with safety regulations [Murphy v. Vivian Realty Co., December 1993].
Send Tenant Letter
Before opening a case in housing court to try to evict the tenant, send the tenant a letter asking him to remove the alterations. Also, ask the tenant to let you inspect the apartment after the alterations are gone. If the tenant complies, you’ll save yourself court costs and attorneys’ fees. You can adapt our Model Letter: Ask Tenant to Restore Apartment to Original Condition.
Seek Tenant’s Eviction
The tenant may refuse to remove the alterations. If so, you can seek his eviction. If you win, most courts won’t automatically order the tenant’s eviction. They’ll give the tenant 10 days to remove the alterations and avoid eviction. But at least you’ll be rid of the illegal alterations. And if the tenant doesn’t remove them, you can go ahead with the eviction.
In one case, an owner sued to evict a tenant for installing a porch screen without consent, in violation of her lease. A court inspection showed that the tenant had installed a screen on her apartment terrace and had screwed it into the exterior brick walls of the building. The court ruled in favor of the owner but delayed eviction to give the tenant 10 days to correct the condition [PWV Acquisition LLC v. Pescador, May 2006].
In another case, a rent-controlled tenant was found to have cured illegal apartment alterations after a court ruled for the owner and gave the tenant time to cure to avoid eviction. The court had found that the tenant had altered floors, closets, the bathroom door, and kitchen cabinets without the owner’s consent. But the court also found the tenant substantially complied with the court’s post-judgment cure order. The tenant restored the flooring, bathroom door, bedroom closet, and two kitchen cabinets in a timely manner. Although the tenant may not have removed three newly added kitchen cabinets, one of these wasn’t even mentioned by the owner during the trial, and the court decided that any violation of the court order by this omission was minor [Benjamin Scott Corp. v. Lydia, April 2009].
Prove Alterations Are ‘Substantial Lease Violation’
Even if your lease doesn’t allow any alterations, courts won’t rule for you unless you can prove that the alterations were extensive enough to qualify as a “substantial lease violation.” For rent-controlled tenants without a lease, they must be extensive enough to be considered a violation of a substantial obligation of the tenancy. This isn’t always easy to prove. In most cases, you’ll have to show that the alterations were permanent and that they damaged the apartment in some way.
Here are some examples of cases where courts ruled against a tenant for altering an apartment.
Bathroom renovation. A tenant demolished the apartment’s bathroom and removed walls, the toilet, the medicine cabinet, and sink fixtures. At trial, the building super testified that he discovered the work in progress after returning from vacation and he told the tenant to stop. The owner’s architect also testified that removal of structural or fire walls in the apartment could require building permits. The court ruled for the owner [201 West 54th Street Buyer LLC v. Rodin, July 2014].
Partition wall. An owner sued to evict a tenant for violating her lease by erecting a partition wall without the owner’s consent. The tenant claimed discrimination and retaliatory eviction. The court ruled for the owner. The tenant appealed and lost. The trial court fairly ruled that the tenant had violated her lease and that there was no discrimination or retaliation. Notably, the tenant didn’t claim in her appeal that she performed the post-judgment cure permitted by the court [Jerome Avenue Tenants HDFC v. Mosaleva, December 2013].
Gut renovations involving plumbing. An owner sued to evict a tenant for performing illegal “gut” alterations to his apartment. The owner and tenant signed a settlement agreement in court in which the tenant agreed to remedy the unlawful alterations. The owner later claimed that the tenant disregarded the terms of the settlement agreement and returned to court, seeking eviction. After a hearing, the court ruled for the owner. The owner showed that the tenant had failed to seek or obtain the owner’s approval for the architectural plans the tenant had filed. And the tenant also used illegal plumbing materials in attempting to remedy the illegal alterations [88th Realty LLC v. Liu, April 2008].
Don’t Waive Right to Object to Alteration
You can give up your right to object to the tenant’s alterations by waiting too long before objecting. For example, one owner claimed that a tenant installed a living room radiator cover without his permission. The tenant asked the court to dismiss the case, and the court ruled for the tenant. On appeal, the court agreed with the ruling. The tenant completed the installation in 1983, more than 20 years before the owner filed the eviction proceeding. By law, the owner should have made any claim for a lease violation within six years of the claimed violation. So the court properly dismissed the case [Barklee 94 LLC v. O’Keefe, February 2008].
See The Model Tools For This Article
|Ask Tenant to Restore Apartment to Original Condition|