I Got Steam Heat - Do You?

After a mild November, winter temperatures have finally arrived, inspiring me to blog about your landlord's obligation to provide heat. From 6 am to 10 pm, the indoor temperature must be 68 degrees when the outdoor temperature is 55 degrees or below. From 10 pm to 6 am, the indoor temperature must be 55 degrees when the outdoor temperature is 40 degrees or below. The "heat season" began on October 1st and continues until May 31st.



If you are feeling cold in your apartment, make sure your air conditioners are properly covered and that there is nothing blocking your radiators. If you are still cold, buy a good quality indoor thermometer. Listen to the weather report on the TV or radio; note the date, time and the outdoor temperature; take the indoor temperature and make a note of it. Keep your "heat log" in a notebook devoted solely to this purpose.



If your landlord is not providing adequate heat, you don't need me to tell you to call the landlord, managing agent and/or super. In addition to calling, write a letter and send it to your landlord by certified mail, return receipt requested. Of course, keep a copy of the letter, and certified mail documents, so that you have proof that your landlord received your complaint. A phone call or letter stating "it's December 12th at 3pm and only 50 degrees in here" is a lot more effective than simply stating "it's cold in my apartment."



If your landlord does not respond to your complaints, call the New York City hotline (311) and complain. The Department of Housing Preservation and Development (DHPD) of New York City will send an inspector to your apartment with a thermometer to check the heat. If the heat is inadequate, the inspector will place a violation and DHPD will give your landlord notice of the violation. If your apartment is still cold, then go to the housing court in your borough, tell the clerk you are "pro se" (representing yourself) and start an "HP" proceeding, or call an attorney for help. Be sure to bring your heat log to court with you!

Eviction After Foreclosure

WARNING:
THIS BLOG MUST BE UPDATED to reflect the provisions of the "Protecting Tenants At Foreclosure Act," Public Law 111-22, signed into law by President Obama on 5/20/09

The purchaser at a foreclosure sale may evict tenants in possession of the subject building even if their leases have not expired. This is because most leases contain a "subordination" clause which provides that the lease and tenant's rights are subordinate to all present and future mortgages.

The purchaser at a foreclosure sale may obtain possession by way of a writ of assistance [RPAPL Section 221] or by bringing a holdover proceeding in housing court [RPAPL Section 713(5)].

If the purchaser elects to bring a holdover proceeding, the purchaser must serve the tenant with a ten-day notice pursuant to RPAPL Section 713(5) and "exhibit" a certified copy of the Deed to the tenant. The ten-day notice must be served in accordance with RPAPL 735, that is, in the same manner as a notice of petition and petition.

The requirement to exhibit the Deed can be satisfied by annexing a certified copy of the Deed to the ten-day notice. The Deed need not be certified by the County Clerk - it is sufficient if an attorney certifies the Deed pursuant to CPLR 2105. Practice pointer: the attorney's original signature, in ink, must appear on the certification and the certification page must be on the last page.

Tenants may assert the following defenses to a holdover proceeding brought pursuant to RPAPL Section 713(5):

• improper service of the notice
• improper service of the notice of petition and petition
• defective notice
• failure to "display" certified copy of Deed to tenant or improper certification
• failure to name the tenant as a party defendant in the foreclosure proceeding
• naming tenant as "John Doe" without making a "diligent inquiry" to learn the tenant's true name (see CPLR 1024) or
• tenant is protected by rent stabilization or rent control.

The holdover petition need not allege whether or not the building is a multiple dwelling or, if the premises is a multiple dwelling, that a multiple dwelling registration statement has been filed.

The tenant who entered into a lease after the foreclosure proceeding has been commenced does not have a defense so long as the plaintiff in the foreclosure proceeding filed a notice of pendency after filing the foreclosure proceeding and before the tenant entered into the lease.

Taking Over a Townhouse for Owner's Personal Use

Real estate brokers who are selling townhouses and brownstones which are occupied by rent-stabilized tenants should consider marketing the property to an individual who wishes to occupy the entire building for his / her own personal use.

Of course the real estate broker must be careful not to give legal advice, and must warn the prospective purchaser that he or she should consult with a landlord tenant attorney for an opinion regarding the viability of the owner use option prior to signing a contract of sale. Similarly, the seller must be warned not to make any written representations regarding the viability of an owner use proceeding.

If the new owner has a good faith intention of occupying the subject building for his / her own use - or for the use of an immediate family member - as a primary residence in the City of New York, the housing court may allow the new owner to evict the rent stabilized tenants. The new owner must be an individual or individuals - not a corporation.

In a case called Pultz v. Economakis, the owner sought to recover all fifteen rent stabilized apartments in the five story apartment building. The highest court of the State of New York - the Court of Appeals - decided that this was okay, because the rent stabilization code permits an owner to recover one or more rent stabilized apartments for owner's personal use. A new law has been proposed to limit an owner to the recovery of only one rent stabilized apartment in owner's building, but due to the current stalemate in Albany, it has little chance of passing this year.

If the rent-stabilized tenant - or tenant's spouse - is 62 years of age or older, or is disabled, then the new owner cannot obtain possession of the tenant's apartment unless the new owner offers the tenant (1) equivalent of superior accommodations (2) at the same or lower regulated rent (3) in a closely proximate area. (Some judges have found that this requirement applies to the tenant's elderly or disabled gay life partner, in addition to the tenant's spouse). Since most owners will find it difficult or impossible to offer alternate accommodations, the tenant's advanced age or disability may preclude or derail an owner use holdover proceeding.

For this reason, real estate brokers should consider asking sellers of brownstones or townhouses for a breakdown of the ages and disability status of their rent stabilized tenants and their tenants' spouses.

Sleep Tight - Don't Let the Bedbugs Bite

In response to the bedbug epidemic, the first national bedbug conference was held in Arlington, Virginia on April 15th and 16th. The blood-sucking creatures are hard to find and eradicate. They are found not only in mattresses and upholstered furniture, but between the pages of books, in clock radios, televisions and just about anywhere. The bedbugs are back in force because of the ban on DDT, resistance to other pesticides, and an increase in worldwide travel. The bedbugs tend to bite just before dawn. A bedbug bite leaves a red welt. Some people suffer allergic reactions. Bedbugs don't transmit disease, but they disrupt sleep and could drive you crazy. And of course, bedbugs are a major cause of litigation between landlords and tenants. Bedbugs have no class consciousness: they can be found in luxury hotels, in homeless shelters and anywhere in between.

What's to be done about them?

The "don't let the bedbugs bite" bill was introduced in Congress on May 15, 2008. It provided funding for the states to inspect hotel rooms for bed bugs. The bill has not passed.

The pest control industry wants federal funding to research eradication methods that do not involve chemicals: such as heating, freezing, or steaming bedbugs out of bedrooms.

Delegates to the bedbug conference will be presenting their recommendations to the EPA.

Stay tuned for future blogs about bedbugs.

Sit Right Down and Write Your Landlord a Letter

If you have a complaint about conditions in your apartment, the first thing to do is to tell the building's superintendent or telephone your landlord or your managing agent. If your landlord doesn't take care of the situation, you can always call 311, the New York City hotline number, and complain. They will send an inspector to your apartment, who may - or may not - write a violation. If a violation is written, it will be sent to your landlord. You may - or may not - be able to arrange to be at home when the inspector is scheduled to arrive.

The most effective thing to do is to open a file and engage in a telephone and letter-writing campaign. If you call the managing agent's office, "Kate" may promise to send a plumber next Tuesday. Tell Kate that you can't sit home all day, and you want to know when the plumber will arrive. Probably, the best Kate can do is to tell you that Josephine the plumber will arrive during a certain three or four hour window - for example, 9:00 am to 1:00 pm. Then immediately sit down and write a letter to the landlord and the managing agent's office confirming your telephone conversation with Kate. The letter should include a description of your complaint, what you said to Kate, what Kate promised to do about it, and a brief explanation about how the condition has interfered with your enjoyment of your apartment. Send two copies of the letter to the landlord - one by regular mail, with proof of mailing, and one by certified mail, return receipt requested. Of course, retain a copy of your letter.

The letter should be sent to the address the landlord or managing agent indicated on the Multiple Dwelling Registration Statement ("MDR") on file with the Department of Housing Preservation and Development ("DHPD") of the City of New York. To find the MDR, go to DHPD's web site: www.nyc.gov/html/hpd. If you do not live in a multiple dwelling, send the letter to the address where you send your rent.

Of course, be there when the plumber is scheduled to arrive. It would be best to have someone wait for the plumber with you - this person will later be able to testify in court that the plumber did not arrive. If the plumber doesn't arrive, continue the campaign: telephone call to landlord, followed by a letter confirming the telephone call, etc.

If your campaign is not effective, it's time to contact an attorney, who may ultimately advise you to withhold all or part of your rent. Never withhold rent without the advice of an attorney. Withholding rent may result in your eviction. Bring your file to the attorney's office: your attorney will be thrilled to see your file filled with letters and proofs of mailing.

If you telephone - but do not write - your landlord, and the matter ends up in court, your landlord may deny receiving the phone calls altogether, or may tell the judge a different version of the conversation. Put yourself in the judge's place: what is s/he supposed to believe? If you never bothered to write a letter, and the landlord denies receiving phone calls from you, the judge may end up concluding that you never did have a serious problem, and that the reason you withheld your rent was simply due to lack of funds.

So no matter how busy you are, or how hard it is to get to the post office, sit right down and write your landlord a letter.

P.S. Landlords note: For the same reasons, write letters to your problem tenants!

Behind Closed Doors

What is behind the closed door of your tenant's apartment? A 350 pound Bengal tiger? Marijuana plants? Alterations made without your consent? Pets (despite the no-pet clause in the lease)? Gallons of paint, turpentine and paint remover or other hazardous materials? Illegal subtenants? A water bed (prohibited by the lease)? Leaking pipes, or other items requiring repair? An apartment being used as an office?

What is not in your tenant's apartment? Perhaps your tenant, who is living somewhere else!

The downturn in the economy has recently led some tenants to make money by turning their apartments into illegal rooming houses. They subdivide their apartments with drywall partitions, or simply with curtains, and allow three or four other families to reside with them. Who is liable in the event of a fire? You, the landlord.

For all of these reasons, and many more, it is important that you or your managing agent gain access to your tenant's apartments at least once per year. Landlords are allowed, by New York City Law, to perform a routine check on the physical condition of their apartments. Why do we recommend visiting only once per year? Because landlords' right of access must be balanced against tenants' right of privacy in their homes.

Of course, landlords or their agents are required by law to make necessary repairs to tenants' apartments. While making the repair, the repair-person should keep their eyes and ears open, and immediately report any problems or suspicions to the landlord, who can then seek legal advice, if necessary.

If you would like access to your tenant's apartment, the first step is simply to telephone your tenant and make a mutually agreeable arrangement. If this is not possible, then you should follow the New York City Administrative Code, and give your tenant a seven-day notice requesting access. We recommend a written notice, sent by certified mail and regular mail. You must allow five days for mailing, so the access date should be set at least twelve days after the date of mailing. If the tenant persistently refuses to give access, you should consult your lawyer about bringing a holdover (eviction) proceeding to gain access.

Warning: This blog is too short to cover the subject of access thoroughly. A good concise discussion of the subject, written in plain English, can be found in Chapter 10 of "The New York Landlord's Law Book" by Attorney Mary Ann Hallenborg, published by NOLO press.

Sources:
The New York Times:
"Police Subdue a Tiger in Harlem Apartment" 10/5/03
"Partitioned Apartments Are Risky, but Common in New York" 2/22/09
"Hundreds of Marijuana Plants Seized at Chinatown Apartment" 9/20/03

Litter Box Saves Shy Kitty From Eviction

Many leases prohibit tenants from keeping pets in their apartments. However, according to NYC law, if a tenant keeps a pet in violation of the lease, and the landlord does not start an eviction proceeding three months after the landlord "knew or should have known" about the pet, then the landlord waives the right to object to the pet. In order to obtain the benefit of the "pet law," the tenant must keep the pet "openly and notoriously" and not hide the pet from the landlord or the landlord's agents.

What about shy cats who run away and hide whenever anyone new enters the apartment? Can a tenant keep a shy cat "openly and notoriously?" According to an appellate court in Manhattan, the answer was yes, in a case where the tenant kept the kitty litter box in the bathroom. The litter box was seen - or should have been seen - by an independent contractor doing repair work in the apartment. The court took the position that the independent contractor was the landlord's agent and therefore told - or should have told - the landlord about the litter box. Apparently, the landlord lost the eviction case, because it did not bring the case within three months of the date when the contractor did the repair work.

Luckily for kitty, she wasn't toilet trained.

184 West 10th Street Corp. v Siiri Marvits, Appellate Division, First Department (February 2009).