We preface today's blog post with a nutshell summary of the key details relevant to New York City's annual "Heat Season." That period commences on October 1 each year and runs through May 31.
A recent in-depth article on rent-stabilized housing in New York City and disputes that end up in Housing Court leads off with the assertion that, for legions of people, the term "gentrification" has unsettling connotations. In fact, it is "a dirty word."
Any article discussing Facebook might reasonably lead off with reference to its size and clout. A recent New York Times piece refers to the company as an "advertising behemoth," which is certainly the case. Reportedly, Facebook users total more than two billion a month. The globe's largest social network site took in an estimated $40 billion in ad revenues last year.
Whether your landlord is suing you for eviction, or you are suing your landlord for repairs, being in court takes its toll. Resources get depleted. Tenants have to take off from work, pay an attorney to represent them, and live with the stress of an unknown outcome.
Our firm recently won a huge victory in a long, bitter and hard fought case entitled Samra v. Messeca. The case was an example of our work in eviction prevention. This was what is known as an "owner use" proceeding-an eviction case brought against a rent stabilized tenant because the landlord claims that they want to have an immediate family member-in this case one of the landlord's daughters- occupy the unit. In order to prevail in such a case, the landlord only needs to establish that he or she has a good faith, honest intention to have the family member live in the unit. Landlords frequently use owner occupancy as a ruse to evict rent stabilized tenants. This case was a textbook example of bad faith. There had been a long history of animosity between the tenant and the landlords. After recovering another apartment under the guise of owner occupancy, the family member for whom the apartment was sought did not move in; instead the landlord destabilized it and quadrupled the rent. Moreover, there were other apartments available which the landlord could have moved his daughter into, and blatant harassment of the tenant. In order to maintain an owner use case, the building must be owned by individuals; in this case, although the deed was transferred to an individual, the building was still managed and operated through a corporation. Tellingly, the landlord had attempted to coerce the tenant into accepting de facto and illegal deregulation of her apartment years before this case began, by suggesting that if she failed to agree, the landlord would evict her in an owner occupancy case. The court, in a 19 page decision, dismissed the case, citing these many factors and held that the landlord did not have a good faith desire to have his daughter occupy the apartment; in effect the court found that the landlord was lying and that the case was a sham. The tenant in this case was represented by Janet Ray Kalson and Sam Himmelstein.
Repeated failures to pay rent which result in non-payment proceedings could result in eviction on the basis of "chronic non-payment." While there is no specific number of non-payments that could result in eviction, Tenants have been evicted where there have been nine non-payments in three years. Not all non-payments count, however. In a recent Bronx County Housing Court case, Mins Court Housing v. Wright, the landlord alleged that there were 12 prior non-payment proceedings in the last 22-years. The Court, however, dismissed the case finding that nine of the proceedings occurred more than six years ago and therefore were barred by the six-year statute of limitations for contract claims. In addition, in two of the more recent proceedings, the tenant had warranty of habitability or overcharge defenses. Non-payment proceedings where a tenant has valid defenses such as a bona fide habitability claim or dispute over the amount of rent owed rent do not count in a chronic non-payment case. A mere inability to pay due to lack of money may excuse an isolated instance of non-payment but is not however a valid defense to chronic non-payment.
On December 23, 2009, attorneys at the law firm of Himmelstein, McConnell, Gribben, Donoghue and Joseph secured a potentially major victory for tenants in New York City.
Most residential leases prohibit subleasing. However, a statute, Real Property Law section 226-b, titted "Right to Sublet", gives the appearance that despite the lease prohibition you can go ahead and sublet. You would not be faulted if you believed that. Alas, it is not that easy and sometimes acts as a trap to the unaware.
In the 1980's, a Brooklyn brownstone containing 7 units was converted to 4 units. None of the units were ever registered with the DHCR. A duplex unit was occupied by the owners from 1998 to 2008. In 2008, these owners sold the building, and the new owners rented the duplex to new tenants. They were given a "market" lease and paid the rent demanded for 4 years. In 2012, a Housing Court Judge determined that the tenants were rent stabilized and ordered a trial on rent overcharge. After trial, Housing Court Judge McClanahan found, in Chun v. Raywood, that the legal rent had to be set based on the DHCR's "default formula," a calculation used when no reliable rental history records are available, and ordered the owners to refund the amount overpaid for the past 4 years, plus interest. Under the "default formula" the rent could be set on the basis of the lowest rent stabilized rent for a comparable apartment in the same line of apartments, or on other alternative formulas that would generally result in a lower rent.
My name is Samuel Himmelstein, I am a partner at Himmelstein, McConnell, Gribben, Donoghue & Joseph. We represent tenants, tenants associations, co-op shareholders and condo unit owners. Over the years we have represented numerous Mitchell Lama Tenants Associations and individual tenants. Most recently I argued and won a case at the New York State Court of Appeals, Murphy v. DHCR, which upheld the right of succession for Mitchell Lama family members, including non-traditional family members, in DHCR supervised buildings.