NEW YORK PRESS

June 8, 2004 
Property Tales, by Jennifer Merin

"I'm not a conspiracy theorist, but sometimes it feels like real estate interests, legislative and court heads have gotten together and said, 'You know, tenants have had too much over the years; we need to shift the pendulum back to the landlords.'"
-Samuel J. Himmelstein, 
52, attorney-at-law

SAM HIMMELSTEIN knows Landlord and Tenant Court well. He's appeared there regularly for the past 25 years.

"I represent tenants, exclusively. I became a lawyer to fight for the underdog," says Himmelstein. "In Housing Court, that's usually tenants. After all, they're threatened with the loss of their homes. It may sound radical, but I believe one person shouldn't have the power of eviction over another. I believe there's something inherently exploitive about the landlord-tenant relationship."

That was why Himmelstein was reluctant to become a landlord himself when, six years ago, he bought the other two coops in the three-story, three-coop, Windsor Terrace, Brooklyn, house in which he and his wife, novelist Amy Herrick, lived.

"We needed more space for our two teenagers," says Himmelstein. "So we bought the entire building for $335,000 and had it de-cooped. Then we spent another $20,000 remodeling the first and second floors into one apartment for our use-removing a kitchen, building first-floor bedrooms and living space for our children and putting in an internal spiral staircase from the first to second floor. My wife and I have our bedroom and studios on the second floor. The kitchen and dining room are on the second floor, too.

"Renting the third floor was essential for covering expenses. But I was nervous about potential tenant problems. I'd never want to be in a position of having to evict a tenant-it would be too contradictory to my personal beliefs and law practice. We were careful choosing our tenant. Fortunately, we've had no problems. We like her very much, and have become good friends."

Perhaps that's because Himmelstein's determined to avoid anything resembling an exploitive landlord-tenant relationship. Even if it costs him.

"We're entitled to raise the rent, but haven't done so and don't intend to. We're not greedy. That so many landlords are greedy is causing real housing problems in our city. Thankfully, I make a decent living-although, speaking frankly, I don't make as much as landlords' lawyers do."

Which brings him back to the subject of Housing Court.

"It's almost impossible for tenants representing themselves-and many can't afford a lawyer but don't qualify for free legal assistance-to receive an entirely fair trial. The playing field isn't even. Tenants without lawyers can't possibly navigate the courts the way landlords with lawyers do. They don't know the law and don't know how to present a case.

"Also, Housing Court judges and lawyers know each other-some judges have practiced in law firms appearing regularly before them. That familiarity can benefit whomever has the attorney. Mostly, it benefits landlords, because most landlords have lawyers, while a large percentage of tenants do not.

"As long as you have a system where 90 percent of landlords are represented by council and 90 percent of tenants aren't, you're never going to have an equitable system. The courts have never held that having an attorney in a landlord and tenant case is a constitutional right-as in criminal cases, for example. Until that inequity is remedied, Housing Court will never be a fair place."

Have there been changes in Housing Court over the years?

"In the mid-90s, the legislature, judiciary and executive branch seem to have decided-consciously or on an unconscious level-that tenants had too many rights. Also, the real estate industry better organized itself and it's lobbying to press for changes. Since then, Albany has enacted laws designed to streamline the court process. Generally, speed in Housing Court isn't a neutral concept. It favors landlords. If landlords seek evictions, they'd prefer the evictions be fast, not slow. Vice versa for tenants. And, tenants must pay owed rents sooner, despite temporary economic hardships," says Himmelstein.

"In my view, courts are increasingly conservative because of Pataki appointments to the Appellate Courts. Housing Court judges are afraid of having their decisions favoring tenants overturned. So, life's harder for tenants."