16th st Illegal space rental

[246W16thst]

I signed a 10 year lease in 2003 NYC to rent a basement space with direct street access; I had concerns about the space being legal for a chiropractic office; the owner told me it was legal for a chiropractic office. To ease my concerns the owner had his attorney put in a rider stating that the space is approved to be used for a chiropractic office by me. I had been paying rent for 9 years. The building had a small fire in October 2012 that the fire department responded to which was followed by building inspectors. I found out a month later that the space was not zoned for a chiropractic office as the owner told me and indicated in my lease; the certificate of occupancy is for a factory and storage only. I stopped paying the monthly rent and had closed down the office early 2014. I had closed the office because I was unable to find affordable space in NYC in such a short period of time; . There was two violation given to me illegal use of the space and work with out a permit (insulation of bathroom, water waste line, erecting rear partitioned wall closing off rear exit). I did go to NYC building court for the two violations; work with out a permit charges against me was dropped as I proved that the work was not done by me. I had to pay a fine for illegal use of the premises. The owner is suing me for the 2013 and few months of 2014 rent.
1) Is there a legal precedence that prohibits the landlord collecting rent on the illegal space?
2) I did not use a broker as I saw a for rent sign outside of the building so the landlord told me and their attorney had written the space was legal for a chiropractic office which was not true; the certificate of occupancy is for a factory / storage only. What can I counter sue the landlord for?
3) Can I get money I had paid the landlord out in rent the past ten years thinking the space was legal for a chiropractic office?

 

[Michael Wechsler]

First of all, retain an attorney. New York City Housing Court is a complex place. I know that it's not what you want to hear but you may be better off in the long run for many reasons.

First of all, I'm taking your word for everything and frequently the documents can spell a different story - even though I believe you're telling me what you believe is true. Real property law and especially zoning issues in New York City can be a maze and the legal documents impossible to comprehend. I hope you had an attorney look over your original agreement since, if you didn't, chances are you wouldn't realize the very harsh clauses that may have been inserted.

1) The owner suing you is preposterous, especially if the property isn't zoned for the use. The last place I'd want to be is in court trying to assert such a right since, by definition, they cannot do so and use the court to collect rent for use that is illegal. This is why I'm a little concerned about what is in the lease and which may make your case a little more complex than the ordinary. I'm guessing that the words in the lease may not represent what you thought was a handshake agreement. The common phrase that is used is that one cannot come into court with unclean hands and ask the court for help.

2) I don't know what you can do. The words in the lease will probably be very important although your use for the purpose stated may shed some light on what was actually agreed. This is especially why I don't think this may be a case which you'll want to handle on your own. Commercial leasing law is not nearly as protective of tenants as is residential landlord-tenant law.

3) Good question. Commercial leasing law is different than residential landlord tenant law, which is where you may have heard this being applied.

There is no answer here that can give you what you need without a proper review and legal consultation with an attorney.