Landlord Can't Sue for Rent, Because Loft Violated C of O

Landlord sued to eject loft tenant and sought use and occupancy. The court ruled against landlord. Landlord appealed and lost. Tenant had moved out, so landlord no longer needed to seek possession. Landlord also wasn't entitled to use and occupancy. Landlord and prior landlords were involved in illegal conversion of a commercial loft to a residential use by tenant. The building's C of O didn't permit residential use, and local zoning laws limited use to commercial and light manufacturing. While zoning laws also permitted combined living and working quarters for artists, there was no proof that artists lived in the loft. There was also no proof that tenant had used the loft for commercial purposes. Since the loft was solely residential and in violation of the C of O, landlord couldn't sue to collect rent or use and occupancy.

Tan Holding Corp. v. Eklund: NYLJ, 10/23/06, p. 35, col. 6 (App. Div. 1 Dept.; Mazzarelli, JP, Friedman, Gonzalez, Catterson, Malone, JJ)