New York City Landlord-Tenant Law Blog

Housing Part or "HP" actions are great tools for tenants, shareholders and, in some cases, even condo unit owners, to obtain needed repairs in their apartments. This blog is a general introduction to this effective tool. In future blogs, I will address HP actions from the various perspectives of tenants, tenants associations, shareholders and condo unit owners.)

HP actions are relatively inexpensive and get the parties into court much faster than conventional litigation does. While you do now have to retain an attorney to bring an HP action, you may need one if expert witnesses testify on your behalf or if your case is complicated. Whether you retain an attorney or not, be assured that once the relevant parties are forced into a courtroom, repairs often get done!

To begin, you simply go to the window of the Landlord/Tenant division of the Civil Court clerk's office where your apartment is located and ask for HP forms. Although not all cases require an inspection (where, for example, you have other ample proof of a condition) in most cases you will fill out a form listing the conditions so that an inspector from the Department of Housing Preservation and Development (DHPD) http://www.nyc.gov/html/hpd/html/home/home.shtml will inspect the premises. The inspector will issue a violation if found, which will be categorized as immediately hazardous, hazardous or non hazardous. The category of violation includes a deadline by which the owner must make the repair. If the inspector finds there is no violation, he or she will report "NVR"-no violation reported.

The landlord/building/management/board is served with the HP forms by mail as the HP clerk directs. Sending these papers will officially put the landlord on notice that you filed a complaint. Do not be surprised if the landlord suddenly tries to fix the problem before the inspector arrives to avoid a violation being issued. You should always let your landlord make repairs.

Next, the parties go to court. The parties are you and the landlord. DHPD is also a party to an HP case because DHPD is the city agency in charge of overseeing the repair of housing code violations to preserve the housing stock in New York City.

When you go to court, the clerk will give you the results of the inspection and generally, the landlord will consent to fix outstanding housing code violations within the legal time frame dictated by law: 24 hours for immediately hazardous "C" violations, 30 days for hazardous "B" violations and 90 days for non hazardous "A" violations.

Landlords will often ask for more time to make repairs so often these time frames are extended, however, those extensions are memorialized in a court order. If the landlord fails to comply with the stipulation you can return to court to seek contempt of the court order. An order finding contempt of court could result in civil and criminal penalties, even jail for the landlord. Landlords rarely get thrown in jail for failure to make repairs, but they do get fined for non compliance. Those fines go to the City, not the tenants.

From start to finish, an HP action can get you results within months-- a much shorter time frame than most litigation-which is appropriate considering the urgency of needed repairs.

In my next blog on HP actions, I will discuss some of the issues rent regulated tenants face in coop buildings to obtain repairs and by using the HP action effectively. Do tenants in coops report problems to the superintendent? To the owner of the shares for the apartment? To the Board of the coop? Details to follow!

Elizabeth Donoghue

Over the years, I have successfully represented many clients in succession cases. In the past, succession rights cases were straightforward and simple. Generally, a practitioner would look at three (3) factors: (a) first, the date the tenant of record left or vacated the premises; (b) second, whether the person asserting succession rights and the tenant of record had a close traditional or "Braschi¹" family relationship; and (c) third, whether the putative successor resided with the tenant of record for at least two years prior to the date the latter left or vacated. Succession was almost guaranteed to a remainder family member who could prove these three factors.

Lately, I have on too many occasions had the unenviable task of having to convince my clients that the landscape has dramatically changed. The most difficult and heart-wrenching succession cases involve clients who were born or raised in the apartment, and never left; whose parents are the tenant of record, but moved out gradually over the years rather than abruptly or suddenly; and who continue to maintain a close and supporting relationship with their parents.

How did the Rent Stabilization or Rent Control Laws - the primary purpose of which is to prevent disruptive practices, dislocation, uncertainty, exactions and oppressive rents - come to permit the eviction of such persons from their home. What changed? What common mistakes tenants and their families make in these types of cases? What can they do to ensure that they are not victim of this changing landscape?

In this and other blogs, I will attempt to answer these questions. First, we should look at a recent reported case, which illustrates the contours of this new landscape. The facts and procedural posture in Malone v Sapinsky, 2011 NY Slip Op 51044(U), 31 Misc 3d 1239(A), decided on June 13, 2011, are straightforward. Petitioner-Landlord commenced the case, alleging that Joseph Sapinsky (the tenant of record) was not using the apartment as his primary residence. The tenant of record and his daughter appeared and raised two defenses: first, that petitioner-landlord had accepted rent after service of the predicate notice, and therefore could not maintain the proceeding; and second, that the daughter had succession rights should the Court find that the tenant of record was no longer primarily residing in the apartment.

As ordinarily happens in this type of cases, the proceeding was marked off the calendar for discovery. The record reveals that the tenant of record was not deposed because he suffers from dementia. The daughter however was deposed. After discovery, petitioner moved for summary for judgment.

Judge David Kaplan found a number of facts to be undisputed. First, the Court found that the tenant of record stopped primarily residing in the apartment since 2003, although he continued to periodically use the apartment over the next couple of years. Second, the Court also found that 2004 through 2008, the petitioner-landlord offered the tenant of record on three (3) separate occasions lease renewals. In each of those three occasions, the daughter failed to assert her succession rights, and instead brought the offers to her father, who signed and returned them to Petitioner-Landlord. Third, the Court also found that the tenant of record continued to pay the rent each month in his own name, drawn from an account with the subject premises listed as the address.

Judge Kaplan found that under these undisputed facts, "the daughter waived her right to assert her succession claim." The Court reasoned that "In instances where the tenant of record and the potential successor tenant distort the fact that the tenant has vacated the premises by continuing to pay the monthly rent and executing renewal leases in the tenant of record's name, then the permanent vacatur date is generally defined as the date the last renewal lease expired". Thus, the Court found that earliest date that the tenant of record could have been deemed to have permanently vacated the subject premises for purposes of a succession claim is July 2010 when the last renewal lease expired". The Court concluded that since during the immediate preceding two-year period there was no showing that the tenant of record lived with his daughter in the premises, summary judgment in favor of the landlord and against the tenant of record and his daughter was appropriate. Lastly, the Court announced this guiding principle : "

The Petitioner-landlord was awarded a final judgment of possession; the warrant of eviction was issued forthwith, but stayed through August 31, 2011. The tenant of record and his daughter were required to pay ongoing use and occupancy without prejudice to the Petitioner-Landlord's right to request market rate use and occupancy. The matter was further restored to the calendar for a hearing to determine the reasonable amount of attorneys' fees Petitioner-Landlord incurred in the proceeding and was entitled to recover from the tenant of record and the daughter.

NEXT: WHAT HAPPENED? HOW COULD THE TENANT AND HIS DAUGHTER LOSE SO BADLY? WHAT COULD THEY HAVE DONE DIFFERENTLY? WHAT ARE THE NEW FACTORS TENANTS MUST PROVE TO PREVAIL IN SUCCESSION CASES?

Serge Joseph

¹ In Braschi v Stahl Associates Co., 74 NY2d 201, 544 NYS2d 784, 543 NE2d 49 (1989) the Court of Appeals expanded the concept of family to include a homosexual couple for the purpose of succession rights to a Rent Controlled apartment.

Cluttering, hoarding, accumulated "stuff" piled high and wide, a condition referred to as a Collyers syndrome (see E.L. Doctorow, Homer and Langley and reality show Hoarders), is the basis for a nuisance eviction case brought routinely by landlords.

Extreme hoarding involves the unwillingness or inability to part with items that would usually be discarded-old newspapers, magazines, plastic bags. I have also seen piles of old bicycle parts, rope, wire and wood scraps. These undifferentiated piles, sometimes head high, turn apartments into caves, dark and infested with small paths separating rooms. Often rooms are totally cut off from the rest of the apartment, back bedrooms or kitchens being sealed shut with wall to wall, floor to ceiling stuff.

The good news is that these cases almost never result in an eviction if the tenant commits to and actually clears out the clutter. My representation always starts with a visit to the apartment so an attorney, not the tenant, determines what has to be done. Most times it is professional clean-up companies that get the job and depending on the severity, can cost several thousands of dollars.

As long as the process of cleaning begins and a completion date is in sight Judges will afford the time required to get the job done.

I have "lost" only one Collyers case. A client in the Bronx refused to un-clutter because, as he said: "no one can tell me what to do in my apartment". He was evicted!

Most clients say the clean-up changed their lives for the better. Isolation, shame and depression also went out the door with the stuff.

William J. Gribben

Tenants suffering hard economic times have taken to renting their apartments for short term overnight or weekend stays, only to discover-often when it's too late-that renting out some or all of a rent regulated apartment is not permitted under the Rent Stabilization Code. In fact, tenants can face eviction for commercializing and converting their apartments into profit-making hotel enterprises.

Landlords easily find out about short term rentals online. Landlords regularly peruse advertisements and see nightly rates and photographs of amenities; they even read reviews by those who have stayed. Once a short term rental is confirmed, a landlord can commence a holdover proceeding against the tenant for wrongful conduct. A tenant can be charged with unlawful rent overcharge and profiteering, causing his or her tenancy to be terminated, without a right to cure the violation.

Even if the hotel enterprise business is thriving in New York, it is unwise to convert your apartment into a short term hotel. You could lose your rent regulated apartment, which is a precious commodity in this day and age.

Elizabeth Donoghue