Q: Six months ago, while I was out, two people were left to die in a 60-unit co-op building in Brooklyn. The body was eventually found and removed. My apartment is above the room where this incident happened and I returned to the apartment that was full of flies and smelled. Two months later, the co-op board received a court order allowing them to break the NYPD seal and remove the contents of the apartment. However, the smell remains and there are no plans for any construction work. The smell has gotten weaker now, but it gets more persistent, especially when it gets hot. It's so cold that I can't keep the window open. I use an air purifier, but I had to give up one room and my entire closet. Since there is no property damage, household insurance is useless. What methods are available?
answer: Your situation is unfortunate and legally complex. In the typical case where a neighbor is causing an unwanted odor, you will contact the co-op board and file a claim against your neighbor, depending on the terms of your co-op's governing documents.
In this case, the co-op board may argue that the neighbor's estate is the responsible party if the deceased tenant is a shareholder, or the sponsor if the deceased tenant is a tenant.
However, the board has a duty to all shareholders to act in their best interests and must be aware that the odor persists and some of the apartments are uninhabitable. If your neighbors are also affected, approach the bulletin board with them. Debra J. Gusoff, a Manhattan real estate attorney, says tell them that the apartment below needs to be cleaned by a company that specializes in odor removal and disinfection.
“Certainly, the co-op board has an obligation to send in a professional company to disinfect properly,” Gusov said. “It's not like mopping the floor. It requires a really special kind of disinfection.”
In situations where a person has passed away and the estate is being contested in court, it may be difficult to enter the apartment for cleaning. However, since the co-op board has already done this, you are more likely to be granted permission to re-enter the apartment for cleaning. If the commission does not respond, you may file a complaint with the Health Department through 311.
You could file a lawsuit to force the co-op board to clean, but that should be your last resort. “You have a very good claim under the warranty of habitability because you have the right to live odor-free,” said Adam Reitman Bailey, a Manhattan real estate attorney. “That's your right under New York law.”
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