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Re: rent abatement for unusable bathroom: % space

Posted by Anna on July 04, 2000 at 17:01:23:

In Reply to: rent abatement for unusable nbbathroom in a coop posted by alexa on July 04, 2000 at 15:45:48:

: I live in a cooperative apartment. The building fixed a leak in a bathroom floor two years ago but has not made a move to restore the tiles and plumbing although required to . I recently hired my own contractor and asked the building to pay for it and I also asked for a rent abatement. They responded asking for a figure for the abatement and also how did I arrive at that figure. Please let me know what the formula is for such a figure or where I can find out. Is it based on how many shares we own or how many square feet was rendered untenantable or anything similar? Thank you


The 'Bible' on rent abatement is a case called Park West. The courts generally use a percentage of unusable space as their guide. Results vary from judge to judge: one might give 10%, the next 25% for the exact same facts. It does not matter that your unit is a coop (unless your prpprietary lease clearly states 'no abatements' or similar words. So, how good a negotiator are you?

Here's the relevant portion of the 'Bible':

Park West Management Corp., Appellant,
vs.
Arthur Mitchell et al., Respondents

Court Of Appeals Of New York
47 N.Y.2d 316, 391 N.E.2d 1288, 418 N.Y.S.2d 310
June 7, 1979

Problematical in these cases is the method of ascertaining damages occasioned by the landlord's breach. That damages are not susceptible to precise determination does not insulate the landlord from liability... Inasmuch as the duty of the tenant to pay rent is coextensive with the landlord's duty to maintain the premises in habitable condition, the proper measure of damages for breach of the warranty is the difference between the fair market value of the premises if they had been as warranted, as measured by the rent reserved under the lease, and the value of the premises during the period of the breach. The award may take the form of a sum of money awarded the tenant in a plenary action or a percentage reduction of the contracted-for rent as a setoff in summary nonpayment proceeding in which the tenant counterclaims or pleads as a defense breach by the landlord of his duty to maintain the premises in habitable condition. We do not comment upon the availability of other remedies not implicated under the facts presented here.

In ascertaining damages, the finder of fact must weigh the severity of the violation and duration of the conditions giving rise to the breach as well as the effectiveness of steps taken by the landlord to abate those conditions. Since both sides will ordinarily be intimately familiar with the conditions of the premises both before and after the breach, they are competent to give their opinion as to the diminution in value occasioned by the breach ... Indeed, the Legislature has instructed that in ascertaining the diminished market value of these dwellings, expert testimony is not required (Real Property Law, 235-b, subd 3).



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