My new apartment's infested! My broker should refund his fee and help me find a new place, right?

By Virginia K. Smith | June 19, 2014 - 9:59AM

We often receive emails from readers asking for help in navigating their own real estate crises. In Realty Bites, we try to get them answers.

The problem:

If a broker finds you a dud of an apartment, can you get him to find you a new one without paying a second broker's fee—or at least have him give back your money?

A reader recently found a rental using a broker, to whom she paid a standard fee, only to discover a week later that the place was infested with mice and ants. Both the landlord and broker "acted surprised and unhelpful," when she brought it up, though after a bit of haggling, she managed to get the security deposit back from the landlord.

When she asked the broker to find her a new place, though, he complained about her budget and said she'd have to look at no-fee listings (where the landlord picks up the charge) in order to avoid paying him again. Surprise surprise, he also claims no-fee apartments are "few and far between."

Eventually, the broker told her to just start looking on Craigslist. "My initial reaction is 'no'--I paid you, find me another place!" she writes. "I don't want to deal with them anymore after countless unreturned phone calls and avoidance when I go to the business in person, but also, I want my money back. Can I get it?"

The solution:

While it seems pretty unfair that a broker could set you up with an unlivable apartment and then disappear, money in hand, he didn't necessarily break any laws.

"The broker probably had no idea the apartment was infested, so in his opinion, he's done nothing wrong and isn't obligated to do any additional work," says Jamie Fedorko, a broker with Warburg Realty.

"Unless the broker misrepresented the condition of the apartment, I don't see a legal issue here," adds James Fishman, a tenant's lawyer at Fishman & Mallon. "The warrant of habitability," meaning the unspoken promise that a place is livable, "applies to the landlord, not the broker, and it seems the broker did what they were hired to do, which is find you an apartment, so therefore, he earned his fee."

However, even if the broker is not legally obligated to offer a refund, he may want to for the good will it would generate, Fishman adds.

It can happen: Fedorko was in a similar position after a client discovered that her new rental was unbearably noisy—screaming neighbors, clanging radiators, the works. He decided to set her up with a new place free of charge after her new landlord let her out of the lease.

In the reader's case, it's a similar situation: "This is the kind of thing that may happen to an agent once every five years, so from a broker's perspective, earning trust and loyalty by doing the right thing--and a little extra work--was really not a big deal," Fedorko says.

It doesn't sound like your broker shares this view, though, so unless you have legal proof that he knew about the infestation and deliberately hid it from you, it's time to cut your losses, leave a harsh review on the brokerage's Yelp page (if it's got one), and start looking for a no-fee--and no-pest--apartment.

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Realty Bites answers your thorniest, wildest and most intriguing questions about buying, selling, renting and living in New York City. Got a query--or just need to vent? Get in touch!

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