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Tenants Can Break Leases if Apartments Flood, Manhattan Lawyer Advises

The rising risk of flooding across North America is raising a critical legal question: Are landlords or tenants responsible for securing a unit from high water? 

The New York Times has the answer, at least for New York City. In a recent response to a Brooklynite’s question, the expert advisors consulted for the paper’s “Ask Real Estate” column placed the responsibility squarely on the shoulders of the landlord.  

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

Which isn’t to say landlords won’t try. To the Brooklyn tenant in question, whose experience of bucketing out water during the past two hurricanes left them feeling like “a sitting duck,” the Times has clear advice: “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,” the columnist says. “You could file an HP [landlord and tenant] proceeding in housing court, and a judge could compel the landlord to do the work.” 

If that doesn’t work? Withhold rent, the Times advises. “And if the landlord pursues a non-payment case against you, a judge could award you a rent abatement.”

Had the apartment flooded outright, the tenant might well have been within their rights to break the lease and leave, noted Himmelstein, who said he would advise his clients to do exactly that if their apartment is hit with flood damage. 

Such advice comes too late for the 13 people who drowned in Queens when the vicious tail end of Hurricane Ida brought floodwaters into the dangerously illegal basement units they called home.