My house is not up to code and my finished basement is unusable. Can I get a rent concession?

Landlord apparently never had basement inspected and it is not up to code.
Already it is 2 months that I have not had a usable basement. I pay for a full
house w/ finished basement. Am I entitled to rent concession for this?

Landlord told me I can move, and they will let me out of lease, but that is a big
expense and low availability of housing in area.

What are my rights?

Asked on April 4, 2018 under Real Estate Law, New York

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

There is no affirmative right to a rent concession. You can use the landlord's breach of the agreement--their failure to provide you all the usable or habitable space which for which you are paying and which they agreed to provide you--as grounds to terminate the lease early and move out, but you cannot compel him to renegotiate the lease (which is what getting a rent concession would be). Another party's breach of a contract (that is what a lease is: a contract) permits you to terminate the agreement, not modify it. 
The above said, IF you refuse to pay full rent and the landlord tries to sue you or evict you for that, then in court you may be able to get a rent abatement for part of the unpaid rent he is bringing you to court for by raising the unusable space as a defense. The first problem is, that if you do this, you don't know in advance what will happen--for example, how much of an abatement you will get. Different judges will view the impact of the unusable space differently, so you might get a generous abatement or you might get very little, potentially nothing (if despite the basement not being code compliant, if you can in fact use it, a judge could elect to not provide any abatement--code compliance is not the same thing as whether space is, as a practical matter, habitable or usuable, and if the landord takes legal action against you, the habitability/usability, not the code compliance, will be the issue). So you can't really plan--you don't know what the outcome will be until and unless you end up in court.
Second, in a court case like this, the judge cannot set the rent going forward or for the future--he or she can only at most give some abatement for the time up to the moment of trial. So if you are still in the space after the legal action, you will have to deal with this issue all over again.


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