Posts tagged "tenants' rights"

No MCI Rent Increase for Owner Who Has 10 years to Repair Defective Windows but Doesn't

Rent stabilized tenants in a Upper West Side building won a great victory today when the DHCR again revoked a $39.16 per room MCI rent increases for new windows after inspecting the windows and finding that they are defective. The owner installed the new windows in 2004 but when they were originally found to be defective in certain apartments the DHCR permanently exempted those apartments from the increase in 2006.  The owner appealed arguing that the exemption should be temporary and that it should be given another chance to repair the windows, although tenants argued it had already had multiple chances. The owner lost its Article 78 appeal before Judge Marilyn Shafer.  The owner then appealed to the Appellate Division.  In 2010 a divided court ruled in Langham Mansions v. DHCR that the agency should have suspended rather than permanently denied the increase, despite evidence in the record that the owner had repeatedly tried to repair the windows and failed.  The matter was sent back to the DHCR and the owner then had four additional years to try to repair the windows. The owner failed to do so and when the DHCR reinspected in 2014 they were found to be defective, as the tenants had claimed they were in 2006.  The windows were found to be both difficult to open and had air seepage due to gaps between the bottom sash and frame.

Owner Use Abuse

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.

Court Dismisses Chronic Non-Payment Claim where Non-Payment Proceedings Occurred More than Six Years Ago

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. 

A Mystery: Tenants in Buildings Receiving 421-G Located in the Financial District Show Little Interest in Securing Rent Stabilization Protections/Rights

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.

Can I Sublet My Apartment?

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.

Owner Use Abuse

Last week our firm week won a huge victory in a long, bitter and hard fought housing court case entitled Samra v. Messeca. 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.

Agreement by Tenant to Vacate Set Aside

Approximately 95% of tenants in housing court are not represented by attorneys. One of the results is that tenants often enter into agreements (or "stipulations") to give up their apartment even when they may have a strong defense to the case against them. In a recent Kings County housing court case, Wilson v. Burda, NYLJ 8/7/13, Judge Finklestein set aside an agreement to vacate that the tenant entered into three years before. The landlord had brought a case to evict the tenant solely because he had not provided access for extermination of bedbugs. Rather than defend the case, the tenant agreed to move out. The tenant never did move out but instead made a motion to set aside the agreement. The court, in setting aside the agreement, found that it was unduly harsh and one-sided, signed inadvertently, improvidently and worked a severe prejudice and detriment to tenant. Even though the tenant was successful in this case two key lessons are - do not deny access for extermination of bedbugs (unless you have a very good reason and have consulted with an attorney), and if at all possible do not sign an agreement to move out of your apartment without having an attorney look at it first.

Non-Payment Dismissed Where Landlord Refused Tendered Rent

New York Housing Court Judge Sabrina B. Kraus recently dismissed a landlords non-payment proceeding on the grounds that the landlord had repeatedly refused rent which the tenant tried to pay. The defense is known as "tender and refusal." Windermere vs. Mulla, NYLJ, 8/7/13. The tenant had been subject to repeated court proceedings by the landlord which had been either settled or discontinued. In one case the landlord failed to file any opposition papers and in the non-payment proceeding the landlord failed to refute the tenants claim that it had refused rent. Landlords often try to wear down tenants with repeated meritless proceedings.

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.

Court Finds Building Rent-Stabilized Although Currently Has Less Than Six Units

On November 21, 2012, a Civil Court Judge in Brooklyn issued a ruling in favor of the tenants in Chun v. Raywood. At issue in the case was whether a duplex apartment in a brownstone, renting for over $2,500 per month, was subject to rent stabilization. The Court determined that the apartment was rent stabilized because: (1) the building had seven units until the 1980's, when it was converted to a four-unit building, and (2) the apartment was owner-occupied for several years before being rented to the tenants. Generally a building must have a minimum of six units for the apartments to be rent stabilized, but the rule is that when the number of units was above six on the effective date of the law, a reduction in the number of units does not affect their stabilized status. Also, the practice of "high rent/vacancy deregulation" does not apply to an apartment that was owner-occupied immediately before it is rented to a new tenant. The Court's decision was published in the New York Law Journal.

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