## Facts

- Shelly Katz was a long-term, rent-stabilized tenant in an apartment owned by Marbar, Inc., with lease rights to use a backyard that included a wooden deck.
- The deck was old and uneven; Katz was expecting a baby and worried that gaps between boards could pose a safety risk.
- Katz testified that she called the landlord to ask if she could replace the deck, but the landlord did not return her call.
- Katz had friends in the construction business build a new wooden deck that was slightly larger than the prior one; Katz did not know whether the old deck was removed or whether the new deck was built over it.
- Katz also installed a new brick-and-cement patio at ground level in an area of the backyard that previously had no such structure.
- The lease required the landlord’s approval for alterations, and Katz did not obtain permission before the work.
- Marbar brought a summary holdover proceeding alleging that Katz breached substantial obligations of the tenancy by: (1) installing the new deck and patio without permission; (2) allowing debris to accumulate in the backyard; (3) covering boiler vents with garbage bags or other material; and (4) placing graffiti or writings on exterior courtyard walls.
- At trial, photographs showed that the new deck and patio were attractive, proportionate to the space, and appeared to be constructed in a neat, workmanlike manner.
- Katz credibly testified that she painted poetry on the courtyard walls in 1988; there was no proof that the landlord or its predecessor objected until 1999.
- As to debris and vent-covering, the court credited Katz’s testimony that any obstructing items were temporary and easily movable and that petitioner did not prove a continuing hazardous condition.

## Issues

1. Whether a rent-stabilized tenant’s construction of a new (slightly larger) deck and installation of a new brick patio, without the landlord’s consent required by the lease, constitutes a breach of a substantial obligation of the tenancy supporting a holdover proceeding.
2. If the tenant committed an unauthorized alteration but the work did not seriously injure the landlord’s property interest, whether the court must order eviction or may instead order conditions that secure the landlord’s reversionary interest while preserving the regulated tenancy.
3. Whether the landlord may base eviction on long-standing courtyard writings where the landlord (or its predecessor) delayed objection for many years.

## Decision

- The court found that Katz violated the lease by making significant alterations (the deck and patio) without the landlord’s permission, constituting a breach of a substantial obligation of the tenancy.
- The court denied eviction and refused to award the landlord a judgment of possession based solely on these alterations where the work did not cause serious harm to the property and appeared to improve the backyard.
- The court dismissed the branches of the petition based on alleged debris accumulation and boiler-vent obstruction because the landlord failed to prove a substantial, ongoing hazard.
- The court rejected the claim based on “graffiti”/writings, finding the poetry did not meaningfully affect the landlord’s reversionary interest and that the possession claim premised on that condition was time-barred due to the landlord’s long delay in objecting.
- As a condition in lieu of forfeiture, the court required Katz to remove the brick patio and to either remove the new deck or post security sufficient to cover the cost of restoration upon vacatur, so the landlord’s reversionary interest would be fully protected.

## Legal Principles

- A tenant may not make extensive and significant alterations without the landlord’s consent when the lease requires approval; doing so can constitute a breach of a substantial obligation of the tenancy and can be addressed in a holdover proceeding.
- In a rent-stabilized tenancy, forfeiture is disfavored; where an unauthorized alteration does not cause serious and substantial injury to the landlord’s property or reversionary interest, eviction is not an automatic remedy.
- A court may fashion equitable, protective conditions—such as removal of unauthorized work and/or posting security for restoration costs—to safeguard the landlord’s reversionary interest without terminating a long-term regulated tenancy.
- Long-delayed landlord inaction regarding an alleged lease violation can bar a possession claim based on that condition, especially where the condition does not meaningfully impair the landlord’s reversionary interest.
- A landlord bears the burden of proving that alleged hazardous conditions are substantial and ongoing; temporary, easily remediable conditions may be insufficient to support eviction.

## Conclusion

Marbar established that Katz breached a substantial obligation of her rent-stabilized tenancy by building a new deck and installing a new brick patio without the landlord’s required consent, but the court declined to impose the harsh remedy of eviction because the alterations were workmanlike and did not seriously injure the landlord’s property interest; instead, the court dismissed the unproven hazard claims, treated the poetry-on-the-wall claim as time-barred, and ordered a nonforfeiture remedy requiring removal of the patio and either removal of the deck or security to ensure restoration when Katz eventually vacates.


Marbar, Inc. v. Katz, 701 N.Y.S.2d 884 (2000)