If my apartment was damaged do I have to pay the full rent?
NO. Depending on the extent of the damage, you may be entitled to a rent “abatement” or reduction of the rent that you were required to pay. Under New York law the landlord must provide you with a habitable apartment. It does not matter if the damage to your apartment was not the fault of the landlord. This is called the “Warranty of Habitability.” In order to get a reduction in your rent, unless the landlord is willing to reduce your rent voluntarily, you have two options, one requiring going to housing court. To get a rent abatement through housing court you will have to withhold all or part of your rent. The landlord will then bring a proceeding in housing court to evict you for not paying your rent. When your serve your “Answer” to the court proceeding, you will list as a defense that there are repairs that have to be done. You will also list as a “counterclaim” that you are entitled to an abatement of your rent. You will have to prove to the court that there is damage to your apartment and that the landlord had notice of the damage. It is always better to have an attorney if you go to housing court. But even without an attorney you could get an abatement of your rent.
Are there risks to going to housing court to get a rent abatement?
YES. There are always risks in any litigation. When a landlord brings a case against you in housing court your name could go on a “blacklist” that may make it harder to rent an apartment in the future. If you do not serve and file an answer when the landlord serves you with a notice of petition and petition, you could be evicted without having had your day in court. Also, if there is an “attorneys fees clause” in your lease, you may be required to pay the landlord’s attorneys fees if you lose your case. If you are withholding rent due to lack of repairs, the damages to your apartment should be extensive to make it worthwhile to go into housing court. As a practical matter, for instance, it may not be worth it to withhold rent because you were without electricity, heat and hot water for only a week.
Are there any other options for tenants besides withholding rent?
YES. Rent regulated tenants can also file an application for a rent reduction based upon a decrease in apartment or building-wide services with the DHCR. The forms are available at www.nyshcr.org/. Normally if your reduction in services is not dangerous to health and safety (i.e. does not involve lack of heat, electricity, hot water), you are required to send a letter to the landlord by certified mail listing the problems and give the landlord 30 days to correct them before you file a complaint with DHCR. However, the DHCR has set up an expedited process for storm-related emergencies which may not require prior notice to the landlord. A Decrease in Services application does not require an attorney but it could take a long time to be processed. If the DHCR finds that the landlord is not providing required services it will roll your rent back to what you were paying before the last rent increase and freeze it until the services are restored. If the decrease in services is only for a few days, this is not a real option because by the time that DHCR makes its decision, the services will have been restored.
What if I am entirely displaced from my apartment because of storm damage?
If you cannot live in your apartment because of storm damage, you do not have to pay any rent. You should still file an application for a Rent Reduction with the DHCR and request that your rent be set at $1.00 until your apartment becomes habitable again.
Is the landlord required to provide me with alternate housing if my apartment is uninhabitable?
NO. Unfortunately, a landlord is not required to provide alternate housing. However, if you do pay for alternate housing, for instance for a hotel or another apartment, you may have a claim against the landlord for the difference between your rent and the amount that you had to pay for a hotel or another apartment during the time that your apartment was uninhabitable. Unfortunately, you cannot pursue these damages in Housing Court, but must go to Small Claims Court (limit of $5000), Civil Court (limit of $25,000) or Supreme Court to pursue them. Seeking these damages in Civil Court or Supreme Court is difficult without a lawyer and it is usually not cost effective to hire a lawyer to represent you in such cases.
How do I make sure that my apartment is repaired as quickly as possible?
It is not uncommon for a landlord of a rent regulated apartment to delay in making repairs in the hopes that the tenant will walk away from the apartment and the landlord can rent it as a market apartment. In order to insure that repairs are done as quickly as possible, it may be a good idea to bring what is called an “HP” proceeding in housing court. An HP proceeding is a case against the landlord with the City of New York as a mandatory party to compel the landlord to make repairs. Having a court order may result in the landlord finishing the repairs quicker than he would if the court was not involved. For more information on HP proceedings see blog below dated January 11, 2012.
Samuel Himmelstein
What if the landlord wants to demolish or “gut renovate” my building because of the damage?
If the landlord wants to gut renovate (replace all building systems and all non-structural parts of the building, leaving only the floor supports and four walls) or demolish your building, he still cannot permanently evict you unless he first gets the permission of the DHCR. The DHCR will not grant such an application unless the landlord first has plans approved by the New York City Department of Buildings and shows that he has the financial ability to complete the work. You will be served with the landlord’s application to the DHCR and have an opportunity to oppose it.
If, however, the landlord can prove that the building was so badly damaged that it is “economically infeasible” to repair it and it must be demolished, he may be able to terminate your tenancy. Whether or not the landlord makes this claim, you are looking at years of litigation and should get together with other tenants and retain an attorney.
Do I have to pay a rent increase for work done to repair storm-related damage?
The landlord cannot get a rent increase for repairs to your apartment, unless you consent to that in writing. Be careful! Never sign anything a landlord (or anyone) gives you to sign, concerning important rights, without consulting an attorney.
The DHCR recently changed it policy in regard to rent increases in these situations. It used to be that if a tenant was displaced due to a fire or similar event, that the landlord could get a rent increase for repairs to your apartment. This is no longer the case.
Building-wide repairs are another matter. If the landlord has to replace a building-wide system (boiler, roof, facade, windows, etc..) due to storm damage, he may be able to pass on the cost to rent regulated tenants. He has to file an application with the DHCR for a rent increase based upon a “Major Capital Improvement.” Tenants will receive notice of the application and have an opportunity to oppose it. There are many grounds to oppose an MCI application and it is advisable that tenants get together, retain an attorney, and oppose the application.
