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Part 4 of our series addresses questions concerning a landlord's ability to restrict access to your commercial or residential┬áspace, and provides an overview of “wrongful evictions.”

(In case you missed them, Parts 1 (rent issues in the midst of COVID-19), 2 (repairs, security deposits, move-ins/move-outs), and 3 (rent gouging, non-primary residence, minimizing COVID exposure), can be found by clicking on the respective links.)

  • What are my rights if my landlord stops me from entering my commercial or residential building?

While reasonable precautions during the pandemic are certainly warranted, landlords should try to strike a balance between respecting individual tenant rights while safeguarding the interests of the community.

Prohibiting tenants from entering or using their commercial or residential premises—based on a supposed fever or illness—may be grounds (among other things) for a wrongful eviction claim.

New York tenants can only be evicted by court order—something owners may not be able to obtain until August 2020, per Governor Cuomo’s extended eviction moratorium which addresses the nonpayment of rent (and rent-related defaults). Tenants who are wrongfully denied the use and enjoyment of their leased space may have a potential claim. (As we have previously noted, such misconduct may abate or suspend a tenant’s obligation to pay rent for such periods of time possession (of all or part of the premises) was denied.)

  • Can my building bar access to some common areas (like the gym or laundry room, for example)?

Health officials are currently recommending that highly trafficked areas, such as fitness centers, playrooms and lounges, remain closed to prevent the spread of coronavirus. If you are renting space in a commercial or residential building which offers common amenity spaces, access to same may have already been restricted or limited. Given that Governor Cuomo has declared a state of emergency, landlords may arguably be afforded considerable flexibility in that regard (as long as they act reasonably and within the confines of the law). They should, however, guard against using the crisis as a blanket excuse to deny essential services or access to key areas (like lobbies, mail and laundry rooms). If such areas are regularly cleaned and disinfected, and it is reasonably safe to afford tenants access, landlords must continue to permit their use.

You may be eligible for rent abatement, or some other form of reimbursement or compensation, due to any interruption or curtailment in services, but these situations tend to be highly fact-specific and the outcome of such claims will often depend on a variety of factors, which would include, and not be limited to, local area customs and practices, guidance from the CDC and other health authorities, and the terms and conditions contained in your lease (together with such local laws and any other documents which may govern the relationship).

  • My building will not allow my nanny, delivery people and/or guests to enter the premises. Can they legally do that?

Absent a good faith basis to unilaterally deny entry, a blanket policy to bar all contractors, vendors and/or guests from accessing a residential or commercial space will likely not survive a legal challenge. Especially when an occupant is disabled, of an advanced age, or in need of medical attention, assistance from third parties may be pivotal. While landlords may impose reasonable restrictions on deliveries, such limitations should be calculated to ensure that the items in question (whether they be groceries, supplies, business equipment, or other property) reach the tenant in a safe and reasonably expeditious fashion.

While absolute bans on all visitors may go beyond the breadth of the Governor’s Executive Orders, to make a legally actionable claim, a tenant would likely have to show how the landlord’s conduct caused “damage,” whether it be in the form of “emotional distress” or in some form of monetary or legally cognizable harm. To successfully argue for the reopening of amenities and/or reinstating access, a tenant may need to prove (i) ownership or management exceeded the powers granted to them by the Governor’s Order(s) or governing law, and (ii) that a contractual or statutory obligation (including, but not limited to, the “warranty of habitability” in the residential context) was breached and impeded the tenant’s rights in a substantial way.

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DISCLAIMER: As COVID-19 related developments change daily, this must be viewed as an exceptionally fluid situation. Accordingly, prior to taking any action, we strongly urge you to contact our office to ascertain whether there has been any change that would impact any recommendations made, or whether there are discrete facts or developments which would warrant undertaking a different tact or course.