Q: We rented a market-rate apartment on the second floor of an older building on the Upper East Side with a vacant retail space below it. (At one point it was a hair salon.) About a year after we moved in, the landlord leased the space to a restaurant. When the restaurant cleans at the end of the day, an overpowering odor of chemicals fills our apartment. The smell lingers for hours and is so bad that we had to move our bed into the living room. I complained to my landlord, but they only said they would pass the complaint onto the restaurant. I’m afraid that if I complain to 311 my landlord will retaliate. But isn’t this their responsibility? What are my options?
A: You are entitled to live in an apartment free of noxious odors, and a restaurant needs to have proper ventilation to ensure that fumes don’t end up in your apartment. But getting the landlord to fix the problem could be difficult.
“It is certainly not something that a tenant should have to put up with,” said Edward Olmstead, an industrial hygienist. “You shouldn’t have to live in those kinds of conditions and abandon a bedroom.”
A restaurant must have a functioning exhaust and ventilation system to prevent smoke and fumes from traveling to other parts of the building, Mr. Olmstead said. These are real health hazards. The fumes you are inhaling could exacerbate asthma or cause irritation if you have respiratory sensitivities.
There are ways to compel your landlord act, but as a market-rate tenant, they come with risks. You could call 311 and report the situation to the Department of Environmental Protection. You could also check the building’s certificate of occupancy with the Department of Buildings to see if it is even allowed to have a restaurant. On the off chance that the use is illegal, you could withhold rent.
“The landlord can sue for it, but he won’t get it,” if he’s violating the certificate of occupancy, said Samuel J. Himmelstein, a Manhattan lawyer who represents tenants. “The tenant can live there rent free.”
Push hard enough, and the landlord may choose not to renew your lease when the time comes. Although New York State rent law prohibits landlords from retaliating against tenants who make complaints about repairs, the rule doesn’t have much teeth. Even if you won a case, the landlord would only have to offer you a one-year lease. “That’s what you get out of it, one year, and you maybe get your legal fees paid,” Mr. Himmelstein said. “Is it really worth it to hold onto a market-rate apartment?”
You might also appeal directly to the restaurant. Explain that the odor is invading your apartment. Ask the owners to check if their exhaust ventilation is working properly, and if they’d consider switching to less noxious cleaning supplies.
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