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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 118635
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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I am a sole proprietor operating a recording studio on the

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I am a sole proprietor operating a recording studio on the 3rd floor of a commercial loft building in Manhattan. My question concerns Paragraph 9, clauses (d) & (b) of the “Standard Form of Loft Lease” of “The Real Estate Board of New York” (the so-called Blumberg lease). On 6/14//08 a severe rainstorm caused a flood that damaged the elevator system such that the elevator was out of service until 8/29/08 (78 days). Clause (d) is a bit confusing as it elaborates on a number of damage and termination issues and later refers to clause (b). My question is whether I am entitled to some apportionment of rent for the period that the elevator was out of service as result of the “casualty.” Although the elevator outage caused some inconvenience to me (access was available via stairs) and there was cosmetic water damage to the demised premises (that has still not been repaired), no portion of the demised premises was ever not usable or accessible. Thank you.
You do not have any defense for witholding the rent. Additionally, the loss of elevator is really not compensible since there was access through the stairs. However, if there was water damage to your premises, the landlord is liable for repairing that damage and if they do not do so after you give them notice, then you can undertake repairs and deduct the reasonable cost of repairs from the rent. The only time you would be entitled to compensation or a deduction would be if the premises were unusuable during that time.

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Customer: replied 8 years ago.
Although I understand I have no defense regarding withholding of rent, I sought a response to the Paragraph and clauses I cited. Specifically, as per paragraph 9, does the flood represent a "casualty"? Ownership provided notice that "due to the severity of the water damage, the entire (elevator) system has been deemed destroyed." Paragraph 9 (d), which addresses "the building" (not just the demised premises) states, "Unless ownership shall serve a termination notice...Owner shall make the repairs and restorations under the conditions of (b)..." Clause (b) provides "the rent, until such repair shall be substantially completed, shall be apportioned from the day following the casualty..." Under what circumstances would this clause for "apportioned" rent come into effect. Thank you.
Sorry, yes the flood would be considered a casualty AND you should ask for the apportionment, but the loss of elevator would not qualify for much of an apportionment since the stairs are available. A casualty would be something unexpected and unstoppable, such as a flood or a fire in the building, so yes the paragraph would apply, the main question is just how much of an apportionment you get and why you have not been sending written notices to the landlord seeking to invoke this clause.
Customer: replied 8 years ago.
With each of the two partial payments I included a letter that explained I was subtracting 1/2 of the base rent for the elevator outage. However, I did not invoke the specific clause in the letters. The question is whether the court might accept my interpretation of the Paragraph. The paragraph I quoted from is lengthy and knotty and the quotes I provided (which may be supportive of my case) fall among other language that may negate them for my purposes. It was for this reason that I cited the specific clauses with the hope that you would provide comment on them. Did you actually look at Paragraph 9 in the standard Real Estate Board of New York Loft lease? If not, the specific lease can be viewed at:   Thank you.
I did look at the lease and since the landlord has not objected to the deduction you have taken, then you are fine. In fact, if the landlord chooses to complain later, you would argue he is estopped from doing so because he failed to complain in a timely manner and he waived his objection. Additionally, if he has not delivered notice or the repair period is over 10 weeks, you are entitled to give your 30 day notice to terminate the lease if you choose. I think you are fine, but what worries me is that it is up to the landlord to determine the percentage deduction and since he has not done so he must be fine with what you have determined to be appropriate and you need to send that in each letter stating that this is the deduction taken pursuant to Para 9 and which he has approved by acceptance.

Customer: replied 8 years ago.
Actually, as I noted in the "Already Tried" portion of the original query, the landlord is suing me for the unpaid rent plus late fees and attorney fees citing Paragraph 20. We went to court Friday and adjourned the case until the 24th. I spoke to a judge who said, as far as commercial landlord-tenant rent allowance/abatements cases go, he did not know of a situation where the court found for the tenant. As I can't afford a lawyer and am representing myself I am trying to ascertain whether i have any leg to stand on with Paragraph 9 having to do with DESTRUCTION, FIRE AND OTHER CASUALTY. Since (d) begins, "If the demised premises are rendered wholly unusable or (whether or not the demised premises are damaged in whole or in part) if the building shall be so damaged that Owner shall decide to demolish it or to rebuild it, then, in any of such events, Owner may elect to terminate this lease by written notice..." My concern comes down to the phrase, "if the building shall be so damaged." What does "so damaged" mean and does it have a bearing in this situation.   Can you see my confusion with this? Thanks so much.
I am sorry I did note that previously. So damaged would be considered to mean damaged by causualty and the clause states that it must be damaged to where it is not useable at all or in part. Your premises are useable, but have been rendered inconvenient such that you should get some deduction in rent, but not a very large one as discussed above. A flood is considered a casualty and the damage sustained is from the casualty. You need to then seek to attack the landlord on their failure to give notice of the time the elevator and other repairs would take and if that time is over the 10 weeks as the lease states you can seek to terminate the lease and the landlord cannot come after you for damages. I really think that you will end up paying a good portion of the money you withheld back to the landlord and you should start negotiating with them now to just come up with an appropriate amount. As I said, the clause applies, but the amount of the apportionment is up to the landlord to determine based upon the damages.
Customer: replied 8 years ago.
Last question in response to your recent message: where is 10 weeks mentioned in the lease?

Thanks for your help.
It was my typo, not 10 weeks, 10 months, "If (1) the period of time set forth in such estimate shall exceed ten months from the occurrence of the fire or other casualty or..."