Friday, January 15, 2016

WHAT KIND OF ALTERATIONS CAN A TENANT MAKE TO PREMISES WITHOUT LANDLORD'S CONSENT







 
Compare these cases:

Britton v. Yazicioglu, 189 AD 2d 734 - NY: Appellate Div., 1st Dept. 1993:

"We agree that respondent's removal and replacement of the cabinets and refrigerator without petitioner's permission when neither was so defective as to warrant such unilateral action was a substantial violation of the "no alteration" clause of the petitioner's lease (Freehold Invs. v Richstone, 72 Misc 2d 624, revg 69 Misc 2d 1010, revd 42 AD2d 696, revd 34 N.Y.2d 612). Nevertheless, issuance of the warrant of eviction should again be stayed on condition that respondent reinstall the original cabinets within 10 days after they are made available to him by petitioner. Should petitioner fail to make the cabinets available to respondent within 20 days after service of a copy of this order with notice of entry, the judgment is vacated.

Kupferman, J., dissents in a memorandum as follows:

To replace an old refrigerator with a new one and to substitute wooden kitchen cabinets for metal ones for aesthetic reasons is an unsubstantial deviation from the obligations of tenancy (see, Rumiche Corp. v Eisenreich, 40 N.Y.2d 174).

To bottom a warrant of eviction on such flimsy grounds is to denigrate landlord and tenant law."

BENJAMIN SCOTT CORP. v. Lydia, 2007 NY Slip Op 50406 - NY: City Court, Civil Court 2007:

"Respondents argue in the alternative that if the court finds that they installed their kitchen cabinets recently, they should not have to effect a cure by taking them down and replacing them with the original or similar cabinets. Respondents contend under Rumiche Corp. v. Eisenreich (40 NY2d 174 [1976]) that installing new kitchen cabinets does not constitute waste or show that they "inflict[ed] serious and substantial injury upon the landlord." But Rumiche did not involve kitchen cabinets. And this court noted just the other week, albeit in a lease-violation proceeding unlike this one and albeit in dictum, that installing new kitchen cabinets is a substantial alteration, not a cosmetic change. (See 259 W. 12th, LLC v. Grossberg, 2007 WL 586598, at *3, 2007 NY Slip Op 50304[U], at *4 (Hous Part, Civ Ct, NY County, Feb 20, 2007] [citing Freehold Investments v. Richstone, 34 NY2d 612 [1974, mem], revg 42 AD2d 696 [1st Dept 1973, mem], revg 72 Misc 2d 624, 626 [App Term, 1st Dept 1973, per curiam] [finding, although under lease clause that does not exist in this case, that tenant made substantial alterations by, among other things, installing new kitchen cabinets]; accord Britton v. Yazicioglu, 189 AD2d 734, 735 [1st Dept 1993, mem] [citing Freehold Investments].)"

Rumiche Corp. v. Eisenreich, 40 NY 2d 174 (1976) is the leading case on this:

"In this perspective, it becomes apparent that in the case before us there was insufficient proof of any repair or alteration which could be characterized as one causing permanent or lasting injury to the premises. The apartment in issue remains a one-room studio. Its four walls are intact and remain in place. The closet and windowframe built by the tenant are merely nailed to and not built into the walls; there was no showing that either cannot be taken down and removed at minimal, if any, expense or damage. They are clearly consistent with the tenant's use of the apartment as a residence. The ceiling light fixture is a straight replacement of the old and unworkable one by a new and functioning equivalent; the addition of a modern wall switch could hardly have been more de minimis. The replacement for the defective ceiling itself, though, according to the parties' stipulation, not as thick as that required by the fire code, was of the required composition and, interestingly, no violation because of it had ever been issued by the city. More pointedly, the landlord made no showing whatsoever, whether by stipulation or otherwise, that the thickness of the falling ceiling which it replaced was any greater than the one of which it complained in this proceeding."

But the dissent stated:

"Applying these rules, in the absence of an agreement to the contrary, it is obvious that the removal of the ceiling and its reconstruction with sheetrock of insufficient thickness to satisfy the fire code constituted waste and, therefore, that the tenant breached an obligation of the tenancy. Equally clear is the fact that the actions of the tenant in making the alterations were the result of willful conduct, that is "intentional and deliberate" (Matter of Old Republic Life Ins. Co. v Thacher, 12 N.Y.2d 48, 56). The only question remaining is whether the waste inflicted "substantial injury" upon the landlord. Alterations of a ceiling that leave the apartment in violation of the fire code could prohibit the landlord from leasing the apartment unless he bears the expense of installing an entirely new one. Resolution of whether this amounted to substantial injury raised a question of fact within the province of the trial court. The finding in favor of the landlord, having been affirmed on appeal, is beyond our power to review in the absence of legal error (Plaza Hotel Assoc. v Wellington Assoc., 37 N.Y.2d 273; Ginsberg v Yeshiva of Far Rockaway, 36 N.Y.2d 706). We observe no error of such gravity and, consequently, the order of the Appellate Division must, of necessity, be affirmed."

NOTE:

Often cited in these cases is Freehold Invs. v Richstone, 72 Misc 2d 624, revg 69 Misc 2d 1010, revd 42 AD2d 696, revd 34 N.Y.2d 612 in which the Appellate Term decision, which also had a dissent, was upheld in which the "tenant removed, and replaced with substitutes, a series of wall cabinets in the kitchen which were so physically annexed and affixed as to have long been accessory to and part and parcel of the realty. Besides installing metallic wall-covering material in the living room and bedroom, the tenant annexed to the freehold for use in connection with it, so that they cannot be removed without injury to the freehold, extensive and substantially imbedded ceiling and wall reconstructions and lighting arrangements."

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