What are a tenant’s rights if they cannot move in to their rental because their is no Certificate of Occupancy?

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What are a tenant’s rights if they cannot move in to their rental because their is no Certificate of Occupancy?

I signed a leasing contract with my landlord of a brand new building to move in on 11/01. My landlord promised me she was able to pass the inspection and get the CO prior to that date. Then I paid her the security deposit (amount equal to 1.5 months rent). And I also moved some of the stuff in the apartment for storage purposes. But recently she informed me that it is unlikely that she would be able to obtain CO by 11/01. My old lease ends at the end of October. After that I will have no where to live. What should I do now? Can I sue for breach? What kind of remedy can I claim if I can sue?

Asked on October 13, 2010 under Real Estate Law, New York


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 13 years ago | Contributor

1) You can sue for breach of contract, since the landlord has in fact breached  it--the landlord has failed to provide you an apartment which you can legally occupy, which is what you contracted for. (Leases are contracts.)

2) You should be able to recover reasonoably foreseeable damages resulting from the breach. For example, things you could possible receive compensation for include:

a) storage charges, for continuing to store your goods

b) cost of short term rentals or hotel/motel while you find a new place to live

c) cost of additional moves you've had to make

d) *possibly* the difference in rent between the apartment you signed a lease for and a similarly situated other apartment that's at a higher rent (if you get a better/bigger apartment, you definitely could not recover; you'd be voluntarily upgrading)

It would be worth consulting with an attorney to see exactly what recourse you might have. Good luck.

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