Himmelstein, McConnell, Gribben, Donoghue & Joseph - Manhattan Tenant Rights and Representation Attorney
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Landlord/Tenant Snapshot: No Access Claims

Landlords commonly request access from tenants for repairs both parties agree must be done. Work usually is completed with cooperation and communication on both sides. But sometimes, claims of "no access" are created by landlords and boards to pressure a tenant or shareholder to do something unrelated to a bona fide repair. For example, tenants have been asked to let an "inspector" in who turns out to be an appraiser for a bank, an adjustor for an insurance claim, or even a prospective buyer. Sometimes a landlord needs access to a tenant's apartment for work in other areas of the building but won't tell the tenant the real reason (knowing the tenant might not be obligated to comply), so he fabricates a reason. Most conflicts arise when landlords send workers without prior notice, workers do not show up, do a bad job, or are unlicensed. Tenants may rightly view such requests as "harassment" and disregard them entirely. Disregarding a request for access can be dangerous, however, no matter how suspect the request might be.

Because some requests for access are vague, it is natural for the tenant to ask basic questions like, who is coming in and why, what will be done and how. Asking any question can trigger a predictable standoff. On the one hand, isn't a tenant entitled to know who comes in to his home and when? On the other hand, many landlords feel no obligation to be transparent, let alone forthcoming. Too often and too quickly, the tenant's basic inquiry morphs into the landlord's declaration that the tenant is difficult and micromanaging. Landlords and Co-op boards, in particular, often refuse to be "dictated to" by a tenant or shareholder, even if the repair is happening in their home.

It is best to avoid a war over access. Here are some things you should do if a landlord or board wants access to your apartment.

•1. Read your lease and/or proprietary lease to familiarize yourself with its access, notice and legal fees provisions. You are bound by your own lease terms, but in general, you must give access on "reasonable notice" (except for an emergency-which requires giving immediate access). The Housing Maintenance Code provides that no tenant shall refuse entry to make repairs or improvements required by law upon reasonable notice. Take every request seriously and try to comply in good faith even if the request is not in writing and does not provide much notice. Stay reasonable and flexible, even if the landlord is not.

•2. Keep track of every request in a written Access Log. Note who made the request, including date and time, how the request was made (Email? Note under the door?) , whether you responded to the request, when and how you responded, and whether the requested access took place. Note what happened at the inspection. Be prepared. Note whether your intercom/doorbell works so you do not miss the workers.

•3. If access does not happen as arranged, advise the landlord in in a simple, factual, written statement. Do not express your frustration to the landlord in writing because it will be used against you. If it is appropriate to send your writing to a third party, do so. For example, if the landlord advises HPD that a violation was removed and HPD believes no one was home to verify otherwise, write to HPD and set the record straight that you were home and the violation remains.

•4. Be clear with all interactions concerning access. Emphasize that you are not denying access if, for example, you cannot tolerate a proposed extermination technique because you have allergies or pets. You should insist that all precautions are taken in advance (e.g. permits, certified lead paint removal, etc.) Some concerns are a matter of health and safety.

•5. Accept that you will not be privy to all information, as unfair as that may seem. Things happen behind the scenes, including disputes about payment, whether insurance claims are made, and reasons for the delay of the completion of work. In co-ops, disputes about who is obligated to pay for a repair are common. Landlords often will not tell you what is truly going on because they do not want you as their decision making partner.

•6. If a landlord brings a no access eviction claim in court as a pressure tactic, consult with a lawyer if at all possible. Weigh the risks and benefits of proceeding to trial. It is best to be represented by an attorney in such litigation if possible. At trial, be prepared with your Access Log to show the court how reasonable you have been, and seek legal fees if you are represented by counsel. If your lease provides for attorney's fees for the landlord, the law provides that a tenant represented by counsel gets attorney's fees if he/she wins the lawsuit. If the court case involves a bona fide dispute about work, be prepared for a Judge to advise you that since it is the landlord's building, they can make repairs with the contractors they choose. You cannot deny access until a landlord uses competent workers.

•7. If your case settles with a Stipulation, as most do, be sure you specify the duration of the work, what work will be performed, dates for commencement and completion of the work. Add a provision that you can leave your apartment if the workers do not show up by a certain time, such as 12 PM.

In summary, claims of "failure to provide access" can easily elicit tensions between landlords/ boards and tenants/shareholders. Too often landlords feel the need to assert their perceived superiority over tenants when the lines are drawn. Be smart and protect yourself against an expensive lawsuit. If you take the request seriously and cooperate, chances are you will never be in court and even if you end up in litigation, you will be seen as the reasonable party in the eyes of the law.

Elizabeth Donoghue