"Bob the Builder" is all the rage with kids and parents alike. You'll find his image on clothing, dinnerware, fruit snacks, lunch boxes, and toys. There's even a popular PBS program featuring Bob, his partner Wendy, and their unique construction crew. "Can we build it?," he often asks before undertaking a project. Well, without more information, most lawyers would be uncomfortable responding to that question.
In addition to prohibitions imposed by local building codes and other applicable laws and ordinances, if you are taking possession of space pursuant to a lease, most agreements, whether they be commercial or residential in nature, restrict the changes that may be made to the property. While the language varies, you will typically find a paragraph or two which contains some pretty stringent language. For example, your residential lease may read: "You cannot build in, add to, change or alter, the Apartment in any way, including wallpapering, painting, repairing or other decorating, without getting Owner's consent before You, do anything...." (Real Estate Board of New York, Inc., Standard Form of Apartment Lease, paragraph 10) While your commercial lease may provide: "Tenant shall make no changes in or to the demised premises of any nature without Owner's prior written consent." (Real Estate Board of New York, Inc., Standard Form of Store Lease, paragraph 3)
While courts will afford tenants some latitude when it comes to certain "unauthorized" repairs and renovations, particularly when these modifications are cosmetic in nature, there are limits to this flexibility.
Will a court allow a landlord to terminate a tenancy based on an unauthorized "repainting" or "decorating" of a unit? Barring anything unusual or extreme, probably not. But if the contemplated changes are more "structural" in nature, that's when significant problems arise and evictions ensue. A recent case decided by the Appellate Term, First Department, reinforces the point.
In 330 East 14th St. LLC v. Klufas, a rent-controlled tenant inexplicably elected to completely gut his apartment, without the building-owner's consent. The tenant installed new sheetrock, removed partitions and beams, reconfigured kitchen and bathroom fixtures, replaced all plumbing and wiring, and, while he was at it, all of the apartment's windows. In a tersely worded decision, the appellate court noted its disapproval of the conduct, and observed as follows:
"The 'construction zone' created by the tenant, which resulted in the issuance of a building code violation, materially injured the landlord's reversionary interest and warranted the tenant's eviction...."So, as you see, not all "extreme makeovers" have happy endings. The safest course to follow, when you feel compelled to alter or redesign your space, is to comply with all laws that may apply and, when necessary, secure your landlord's written consent prior to undertaking any of the work.
For a copy of the Appellate Term's decision in the Klufas case, please click on the following link: