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Misconceptions about the Law

On Behalf of | May 11, 2012 | Tenants' Rights |

There are two popular misconceptions that many non-lawyers (and maybe even some lawyers) have about the law. One is that there is a “right” and “wrong” answer to every legal question. Another is that the legal system is a place to find justice. Regarding the first misconception, clients sometimes say to me “doesn’t the judge have to find in our favor because that is the law?” But the law is not a science; it is more of an art. Law is a matter of interpretation and different judges can interpret things different ways. As the late Supreme Court Justice William Brennan famously said, the law is whatever five justices on the Supreme Court say it is!

A judge (housing cases are almost always decided by a judge) reaches a decision by looking at several things. The judge must determine what happened – what the facts are. The facts are often in dispute.

A tenant may argue, for instance, that she slept in her apartment more than 183 nights out of the year, one of the factors which determines whether a rent stabilized apartment is a tenant’s “primary residence.” The landlord will argue that the tenant was in the apartment many fewer nights. The judge has to look at all of the facts, including the testimony of the witnesses, to decide who is right. Sometimes the case will hinge on what documentary evidence the judge accepts into evidence. Other times the case will turn on whose testimony that judge finds more credible.

The facts are only one facet of the case. Equally important is the court’s application of the law to the facts. The law has three major components. One is the statute itself, enacted by the legislature (e.g., the Rent Stabilization Law). The second is the regulation adopted by the relevant administrative agency, such as the Rent Stabilization Code. Often they do not say precisely the same thing. The judge also has to examine case law, or decisions by other judges regarding similar situations or issues. In looking at the law, the regulations and court decisions, there is lots of room for different interpretations. For instance, the Rent Stabilization Law says that a family member (or “non-traditional” family member) can succeed to the apartment of a tenant only if she has resided with the tenant for two or more years (one year if the tenant is disabled) prior to the tenant’s “permanent vacatur.” Neither the law nor the code defines precisely what is meant by “permanent vacatur.” The courts have had to interpret this term by looking at specific cases. Courts have found that if the tenant moves out of the apartment but still signs renewal leases, pays the rent and visits the apartment, she has not permanently vacated. Therefore, the person claiming succession would most likely lose in this situation. This interpretation of the law strikes tenants and tenant attorneys as unfair (or “wrong”) because a child who has spent his entire life in an apartment could be denied succession simply because a parent who has moved out retains ties to the apartment. (A tenant, for instance may keep signing leases and paying the rent thinking she is doing it to keep the apartment for her child although she moved out long ago and permanently settled elsewhere.)

Accordingly, for many, if not all legal questions, there is no “right” or “wrong” answer. There are different interpretations of the law which are argued by attorneys for each side because that particular interpretation would benefit their clients. The answer to the any legal question is what a judge decides it is. The same case with identical facts could be decided one way by one housing court judge and another by a different housing court judge. Of course, a judge may interpret the law using poor reasoning. Or a judge might interpret the facts in a way that is unreasonable. In this case the appellate courts may “correct” the lower court decision. But even the highest appellate court may reach a decision that could appear “wrong.” For instance, the U.S. Supreme Court’s decision in Bush v. Gore appeared wrong to many people and some felt that it was motivated more by political considerations than a reasonable interpretation of the law.

A second popular misconception is that the courts are where people go to find justice. As discussed above, the role of judges is to apply the law to facts. Sometimes the law is not on your side, even if you believe that your case is just. For instance, in the example above, it may seem extremely unjust that you could live in a rent stabilized apartment with your parents for your whole life, that they could move to another city, and that a court could not grant your right to succeed to the apartment. I would argue that it is unjust and even contrary to what the State Legislature intended. But the law, as it has been interpreted to date, could preclude you from getting succession if your parents had continued to renew the leases.

Another problem is that tenants often have grievances for which there is no legal remedy or no good legal remedy. A long pattern of minor harassment by a landlord is a good example. For instance, say the landlord is slow to do repairs and the super is hard to reach and insulting. Perhaps the super tells the tenant “you should move” and the landlord takes away the storage room and furniture in the lobby. While a tenant may accurately believe that all of these actions are designed to make rent regulated tenants lives miserable so that they will move out, it is unlikely these things add up to the kind of harassment for which the landlord could be punished. Moreover, even if the landlord is punished, the punishments meted out are often a slap on the wrist. While this may feel unjust, and is unjust, the law is not always about getting justice.

A third obstacle to obtaining “justice” is that while there may theoretically be a good legal remedy for a problem, it may not be cost effective to hire an attorney to litigate the case for you because the cost of the attorney could exceed the benefit you could obtain. This is often the case where a tenant has withheld rent because she has been deprived of basic services and the landlord has commenced a nonpayment proceeding.

It should be noted that sometimes justice does in fact prevail! I had a client whose building had a broken elevator for almost a year. The court had ordered the landlord to fix the elevator and the landlord ignored the order. I personally served the (notoriously bad) landlord with a contempt motion which could subject him to imprisonment. The elevator was promptly repaired.

Samuel Himmelstein

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