Volunteer Lawyers Manual



Volunteer Lawyers Manual

Must include: From Manhattan

conflict issues:

• reviewing forms (not supposed to really) (,)

• attorney worked for firm on Ct papers (,)

nonpays (5)

• Service of nonpays for those wanting to bring it: (note, the person cannot serve it, must get process server or friend, also, atty cannot sign it)

o serve rent demand and have affidavit of svc filled out

o after 3 days copy demand & affidavit, and fill out npp. Go to clerk office w/all 3

o buy index & they stamp it

o Give original of everything except the notice of petition (i.e. orig of petition, demand & affidavit) to ct.

o serve copies of npp

o then come back w/original of notice of petition with affidavit of service that you served the copies w/in 3 days

holdovers (13)

• succession rights (6)

o (note: what are income affidavits? From DHCRs website on mitchell lama “What are my responsibilities with respect to reporting my income? All tenants in DHCR supervised Mitchell-Lama developments are required to report their income, and the income of all household members, annually and to comply with housing company requests for documentation. Tenants in federally-assisted developments are subject to HUD's annual income re-certification requirements. Tenants in non-federally-assisted developments are subject to DHCR's annual income review procedure.

o “I forgot to file my income affidavit on time and was assessed a 50% surcharge on my July rent bill. I brought my completed affidavit to the management office as soon as I realized my mistake. Although management agreed to remove the surcharge going forward, they advised me that they could not remove the surcharge already billed for July. Is this correct? Yes. When a tenant who is subject to DHCR's annual income review procedure fails to submit a completed income affidavit, or necessary documentation, management is required to give the tenant one month's notice that a 50% surcharge will be added to the rent. Once the affidavit or documentation is submitted, management is required to recalculate the surcharge on the basis of the submission and the effective date of any resulting rent change should be the first of the following month. Management is not permitted to waive a surcharge that has already been assessed due to the failure of a tenant to submit the income affidavit on time.”

o succession note: if the parties move in together initially into the building, then they don’t have to live together 2 yrs. can just be from the inception of the lease.

• nonprimary residence/illegal subletting (7)

• chronic nonpay ()

• nuisance (1)

• overcharge/profiteering (1) (where LL brings against tenant for overcharge to get tenant out)

• illusory tenancy

• licensee HO (2)

licensee/squatter proceedings (#LL or prime tenant wants to bring one) (6)

• couple of caveats here: first, did LL authorize to bring? see RS/RC rules. Second, did they overcharge the subtenant? That can go against them, b/c LL can get THEM out if they know… Third, and most often, how did they accept rent? If monthly, that’s fine, can do a 30 day notice. The notice has to tell what date rent was due. If weekly or some other arrangement, that is problematic in Manhattan. What matters is the original agreement with the subtenant, NOT whether they paid or didn’t pay…

• if roommie NEVER paid, then it is more problematic, b/c they can allege family relationship…

• also note: ct atty cannot fill out forms for them. they have to do it themselves.

illegal lockout (1)

Marshal’s notice (2)

LL or prime tenant overcharge (see article – relative merit of DHCR complaint v. Housing ct…Housing ct wins) (1)

HP proceedings, how to bring (last resort) or brought one (2)

• Repair issues: can repair & deduct, I think, (check) but cannot improve & deduct

• check what repairs are. Is LL overcharging for making repairs that he shouldn’t have charged for? i.e. leaks, etc. LL may not be entitled to increases she is charging

• LL supposed to paint every 3 yrs

• what is repair and what is renovation

• no rent abatements w/HP actions

constructive eviction? Civil ct I think???

Defenses:

Petitioner no standing to bring case ()

tenant cured violation ()

improper service ()

no ct papers before marshal’s notice (,)

repairs/LL violations for nonpay (,)

repairs/LL violations for nuisance HO (,) (311 calls)

retaliation

Misc.

Preferential rents (2)

448 West 54th Street Corp. v. Doig-Marx

Jul. 14, 2004 - Lease rider that contemplated for preferential rent for the term of the tenancy is not affected by 2003 amendment to the Rent Stabilization Code that allows a landlord to charge legal regulated rent upon expiration of preferential renewal lease.

Complying with a stip, what happens if tenant can’t

• LL (and tenant) have 45 days to comply w/stip

Inspections (1)

Adjourning (1)

Security deposits (1) (LL must return w/in 30 days)

SCRIE (2)

Rent increases, tenant has question (RS/SCRIE issues, can get rent history from LL, DHCR issues, i.e. has LL applied for MCI, etc) (2)

• side note: DHCR regulates rent for most SROs

Assigned counsel cases (2)

Section 8 (3) (note, LL ct papers must allege § 8 or they are defective)

Tenant credit agency (2)

guardian issues (1)

Jiggets

RS rights

7A cases brought by HPD or tenants

money resources (one shot deal, charities, etc) (2)

atty fees

squatters (1) if a person is in the apt > 30 days, they must be evicted by summary proceeding only. NO SELF HELP. Cannot just lock them out. This may be what people mean by “squatter’s rights”.

How to approach person:

those w/court papers:

1. look at type of building

2. look at papers, NP or HO, and court date

3. look at papers for defects

4. look for defects in service

5. If HO look for:

a. RS,

b. succession

c. illegal sublet

d. chronic np

6. If NP, why didn’t they pay?

a. condition in building?

7. HP

8. What stage is case?

a. lockout

b. post eviction

c. trial /end game options?

1. Conflict info:

a. legal advice/legal info

i. Legal information: “written or oral statement that describes and explains court procedures, the law, legal terminology and options available to court users without interpretation, reference or application to a specific actual or potential case or situation. Generally, questions seeking legal information contain the words “can I,” “how do I” and “what do I.””

ii. Legal advice: is a “written or oral statement that applies or interprets the law as it relates to an actual or potential case or situation and /or recommends a specific course of action for the case or situation. Generally, questions seeking legal advice contain the words “should I” or “whether.”

b. unbundled…ghostwriting, etc.

2. Preliminary questions: (i.e. ones that are usually asked at front desk)

a. is there a case in ct

b. if no, then is there a quick question

c. if no, do they want to bring a case

d. do they have a lawyer? if yes, we can’t help them

e. can we help them at all? sometimes it’s another issue entirely and it helps to know when to refer them to another ct. (i.e. actions in ejectment? SC, family ct, small claims, etc?)

f. how to look up rent violations

g. looking at the court papers/printout

3. **important notes:

a. wrt service: if possible, can always claim improper svc if there is any question, b/c if not claimed, it is waived…

b. LL shouldn’t come into apt w/out consent unless it is an emergency (check whether this is just for rent regulated?)

c. Security deposit must be returned w/in 30 days

d. note wrt illegal lockouts: if a person has been in the place > 30 days, they cannot be locked out. The LL must proceed thru the court process to get them out. This may be what is termed “squatter’s rights?”

i. squatter = no permission to be in

ii. licensee = has permission/guest

Overview of L&T process (chart?).

(from )

INTRODUCTION

Court administrators changed the way that cases are handled in the housing court as of January 1998. These changes affected both non-payment and holdover cases. Please note the differences in these cases as you read this information sheet.

FINDING YOUR COURT ROOM

Non-payment Cases — After you answer the petition/notice of petition for non-payment, the clerk will give you a copy of the answer form with the responses you gave. At the bottom of this answer form you will find the date and time that you are to return to court. It will also contain the room number for the Resolution Part to which your case was assigned.

Holdover Cases — When you receive the petition/notice of petition, it will contain the date, time, and courtroom that your case was assigned.

YOUR FIRST DAY IN COURT

You should arrive early on each day that you go to court. You may have to wait on line to go through metal detectors or to use an elevator. You must be on time. You should always bring all copies of your court papers and anything else related to your case. It is also helpful to bring paper and a pen to take notes and some change for photocopying or the telephone.

Outside of the courtroom, there may be a list of cases scheduled for that day. If there is no list, or if your name is not listed, you may try to speak with the court officer or court attorney in that courtroom to make sure you are in the right place. If they cannot help you, you can go to the information window in the clerk's office.

If your name is listed outside of the court, you should go inside and wait for your name to be called by the court clerk. While you are waiting, your landlord's attorney may try to speak with you about your case. You do not have to speak with this attorney without the judge or the court attorney present.

ADJOURNMENTS (Postponing your Case)

Non-payment Cases — If you need repairs done in your apartment or building, you may want a court-ordered inspection. You may ask the judge for an adjournment (postponement) for the inspection.

Non-payment Cases and Holdover Cases — If you do not have an attorney with you, you may want to ask the judge for an adjournment for time to seek an attorney. You may also be able to obtain an adjournment if you are not able to come to court due to serious illness or hospitalization.

NEGOTIATING A SETTLEMENT IN THE RESOLUTION PART

In the Resolution Part, the goal is to settle the case through an agreement, called a "stipulation". The agreement should be negotiated in the courtroom, in the presence of a judge or the court attorney. Neither the judge nor the court attorney can advocate for you.

It is very important that you tell the judge or the court attorney the facts about your case, including your defenses and counterclaims. Although you may have already stated these defenses and/or counterclaims to the clerk when you answered, you must state them again during the court case.

(For more information on how to defend yourself, please review the Task Force information sheet on Non-Payment or Holdover proceedings).

Non-payment Cases — Your defenses may include partial payment, repair issues (warranty of habitability), etc.

Non-payment Cases and Holdover Cases — In addition to the defenses above, you may have been improperly served with the court papers, you may have not been given proper notice before the cases was filed, or you may have corrected a problem which the landlord claims has ended your lease.

You may be under some pressure to sign a stipulation, in the hallway or in the back of the courtroom. A stipulation is a binding agreement, like a contract. You should not sign a stipulation if you are uncomfortable with it or do not understand its terms. Remember that you have a right to speak with a judge. Because the "stipulation" is a binding agreement, it can not easily be changed if you are unable to keep to the agreement (for example: pay according to a payment schedule). (For more information on negotiating a stipulation, please review the Task Force information sheet on stipulations. This information sheet contains explanations of many legal words and phrases that may be helpful to you.)

If you and the landlord sign a stipulation, the resolution part judge will read the stipulation to you and ask if you understand the terms of the stipulation. You should ask questions about anything that you don't understand, or anything that you are concerned about. This process is called "allocution" and is required by law. The judge will then sign it and you will receive a copy of the stipulation.

If you cannot reach a settlement with the assistance of the judge, your case will be transferred to a Trial Part. In many instances the trial can begin on that same day or the next day. It is best to be prepared.

GOING TO TRIAL

Once a case is sent to the Trial Part, both sides are expected to be ready to present their side of the case. A trial will include formalities that you may be unfamiliar with. If you have questions about the trial process, you should consult the Court guide to Trials or the housing court counselor (pro se attorney). The landlord or his/her attorney must present his/her case first. Once they are finished, you will have the opportunity to present your case (defenses and counterclaims). While each side is presenting their case, the other side can ask questions about information being presented (cross-examine). Each side can also bring witnesses and/or introduce or subpoena supporting documents (for example: government documents, photos, rent receipts) to support their position.

WHAT THE LANDLORD IS GENERALLY REQUIRED TO PROVE:

1. He /She is the proper person to sue the tenant (generally, by showing a certified copy of the deed),

2. A landlord-tenant relationship (lease or testimony as to the oral understanding between tenant and landlord or that this relationship was terminated,

3. A valid multiple dwelling registration (for buildings with three (3) or more units),

4. If the apartment is rent stabilized, that there is a current registration with the Division of Housing and Community Renewal (DHCR)

5. The rent claimed is the legal (or agreed upon) rent,

6. The landlord has made a rent demand, given notice of termination or a notice to cure, and

7. After a proper demand was made, the tenant has not paid the rent or that after a notice to cure the tenant has not made an appropriate change

FACTS THAT A TENANT CAN PRESENT AT TRIAL

1. Failure of landlord to repair conditions in your apartment after being notified by you (supported by your or other witnesses' testimony, photos, inspection reports etc.).

2. That you do not owe the money claimed by the landlord (rent receipts or other proof of payment).

3. That the rent is not the legal rent (supported by a certified copy of a DHCR printout.

4. That you have a right to stay in the apartment (examples: you have succession rights, you have cured any breach of the lease, etc.)

Note: In Non-payment Cases, generally, the judge will not consider your personal financial problems (illness, loss of job, etc.) as a legal defense to the landlord's claim for rent arrears.

4.

a. Holdover:

i. definition: Holdover proceeding is where LL says right to occupy has expired for some reason (or there never was one?) and there is no L&T relationship. LL wants possession b/c tenant is in space “adversely”.

ii. Papers: LL (or prime tenant) serves tenant (or sub, or licensee) w/predicate notices: 10 day or 30 day notice to cure or terminate. Then, after the period is up, LL may serve w/notice of petition and petition. (wait, there are 2 steps: notice to cure and THEN a notice to term prior to npp, but not in nuisance cases

iii. Tenant can cure w/in the period, this is a defense to HO.

1. 10 day notice to cure: tenant can cure w/in 10 days.

2. 30 day notice to terminate. This goes by the term of the lease. Used to terminate a month-to-month tenancy (i.e. a roommate paying monthly, or a person with no lease, or whose lease has expired and is considered month to month)

iv. If LL gets a judgment against tenant, they can evict. They get a Marshall’s notice of eviction against tenant.

v. Practical:

1. conditional limitation. In lease (para 17?) there is automatic termination on default, power to terminate must be in lease (or statute) in “default” section, must be premised on an agreement or on statute (illegal acts, etc ). This is roadmap for how LL must terminate. Look at each lease. Usually, rent default will not be included. If it is, a residential tenant still cannot be terminated by HO for nonpayment (unless for chronic nonpayment, see below). Commercial tenant can be.

2. RPAPL 753(?

Holdovers

• Notices:

o usually must receive a notice to cure, (10 day) then a notice of termination 10 days later. (but not in nuisance cases

o if not required to give a notice to cure and term, LL can give a notice to quit (30 day?)

o then after that, serve npp. The NPP will have the court date in it. tenant can answer orally or in writing on that ct date or answer in writing before the ct date.

• answer (possible defenses VA may be able to give to tenant)

o what LL claims tenant did or didn’t do is not true

o notice to cure/terminate is not specific enuff

o improper service

o LL accepted rent after the date listed in notice of termination and before tenant was served w/npp. Be alert for this one.

o LL is retaliating

o predicate notice was not signed by LL or authorized agent

o tenant has succession rights (even tho lease is not in their name) (see succession rights issues)

o no MDR registration (illegal apt)

Holdovers: (from notes and video program)

• Overview:

o Can’t combine nonpay and HO, they are inconsistent. Harris v. Timecraft Industries, Inc., 132 Misc.2d 386. (mutually exclusive remedies)

o Conditional limitations: conditional limitation is in the lease, it is a provision calling for the automatic termination of a lease upon the occurrence of a specified event. Gonzalez v. Peterson, NYLJ 6/12/98 App. Term 1st dept) absent contractual or regulatory entitlement to terminate the tenancy for objectionable conduct or for any other reason, “there was no authority to terminate the tenancy and no authority to maintain a summary proceeding”)

o HO proceedings based on isolated rent delinquencies should be avoided. See Park Summit Realty Corp. v. Frank 107 Misc.2d 318. And 205 WEA Owners Corp. v. Adler NYLJ 111/2/90, (in res tenancy, a contractual provision which permits term of the lease for NP of rent other than chronic situations is against public policy)

• 2 step process is not always necessary, i.e. not nec. w/nuisance cases

• some statutory protections are waiveable, some not

• Standard roommate relationship is a licensee relateionshp

• Default paragraph is VERY important, LL cannot skip steps

• Procedure: Predicate Notices:

o cases:

▪ Dentree Associates v. Frankie’s Stores, Inc., NYLJ 6/6/88 App term 2d and 11th Dist) Strict compliance w/lease provisions regarding notices of termination were required

▪ Helfer v. Conway, NYLJ 3/11/99 (App Term 1st Dept). Petition dismissed b/c of LL’s failure to serve the predicate notices required under RS Code.

o Rent regulation: RS code § 2524.2 and 2524.3

o Content of notices:

▪ no notice required upon lease expiration

▪ notice to cure:

• specificity

• identify violations

• direct tenant to cure w/in time frame provided by lease and/or statute and

• advise of consequences

• Oswego Properties v. Campfield, 182 A.D.2d 1058 (3d Dept. 1992); Filmtrucks, Inc. v. Express Industries and Terminal Corp., 127 A.D.2d 509 (1st Dept 1987)

▪ *Regulated tenancies: notices should cite

• Lease and/or statutory provision(s) violated

• the nature of the violation

• factual underpinnings that support/establish the alleged wrong(s) and

• date certain by which action must be taken

• Chinatown Apartments, Inc. v. Chu Cho Lam, 51 N.Y.2d 786 (1980)

o If LL issues wrong notice, it can be a defect. BUT: there is a reasonableness std for notices.

o wrong signature can also be a defect to predicate noticeand can cause case to be dismissed. LL’s Lawyer should NOT sign predicate notices.

o NO notice required: if tenancy has ended, no notice is necessary. Check for the end of the lease term. LL can go straight to npp. Roadmap doesn’t apply

▪ Caveat: if lease expired, but LL accepted any rent afterwards, LL has created a new month to month.

o Notice required: (animal, washing machines, etc…issues)

▪ notice to cure gives an opportunity to cure

• if ntc is defective, many judges will dismiss. Check to see if there are any defects in the ntc.

• specificity: LL must give an adequate description of the violations and what the T must do to cure. LL cannot just advise of violations, must tell how to cure.

• * With regulated tenancies, the LL should give facts

• Must have a deadline date

▪ notice of termination: if T doesn’t cure, LL can serve ntt

• must also be specific

• must have a date certain

o Other notices:

▪ Golub: RS (regulated) tenancy is not being renewed

o 30 day notice of termination: terminates month to month tenancy

▪ gives a date to leave. Check the date, b/c it LL (prime tenant ) must give a full 30 days. In other wds, if u serve on 10/15, you must give tenant until 11/30.

▪ must tell T that if they don’t vacate, LL will commence proceeding

o Notices to quit (licensees & squatters)

▪ squatter: enters w/out authority

▪ licensee: someone w/authority gave permission

o Service of notices: look to lease roadmap. If nothing in lease or statute, then regular mail is ok, but must add 5 days to timeframes in lease.

▪ 30 day notice: must be served by personal svc.

▪ notice to quit: must be personal svc.

• note: (protections of RS & RC are not waivable)

• Substantive issues:

o Reason for term tenancy must be substantial, NOT de minimus. (look to lease again, if lease says substantial, it is)

o Examples:

▪ structural alterations

▪ washing machines

▪ subleasing/assigning w/out consent except for rent regulated

▪ duplicate keys not given to LL

▪ Tenant did not give security deposit

▪ covenant to pay rent (but caveat, can’t holdover just for rent default…)

▪ covenant to occupy for a certain purpose

▪ Nuisance = exception to 2 step roadmap.

• if it is a threat to health, safety & comfort of neighboring tenants. It should be continuous or persistent, (but one time only happening may be enuff…depending on what it is)

• Note: mental disabilities (OCD, collyers, etc, don’t matter, but maybe can get ct appointed something?)

▪ Pets: LL must complete the whole proceeding w/in 90 days of pet discovery, i.e. must serve ntc, ntt, npp, must be in ct w/in 90 days. BUT if the pet becomes a nuisance, this doesn’t apply.

• 1st dept: pet lw doesn’t apply

• 2nd dept: pet law applies

NonPays:

5. definition: LL says tenant owes money. There IS a L&T relationship. The core issue is rent

6. papers: demand for rent (can be oral), (usually 3 day?) then LL can serve w/npp

7. tenant can ALWAYS cure a nonpay. Pay up and prove it and the case ends (? what are logistics of this?)

Session 3: (S. Russo, legal svcs NY, Legal support unit – 646-442-3598 for help

Nonpayments

• background: losing much regulated housing, FM housing has no protection or tenure for tenants. LL can do a lot: raise rent, refuse to renew, etc. If LL gets possession, they can decontrol the unit. The poorest wind up in housing ct.

• there is NO self help eviction in NY. For a month to month tenant, it is better for a LL to bring a nonpay than a HO, b/c the HO must give 30 days notice, then institute a proceeding, so it can drag on. with a nonpay, you give 3 day demand. If no lease, you can even call & demand orally. After 3 days you bring a npp and are in ct sooner.

• Standard of service: “reasonable application” (as opposed to due diligence). This means try 2x to find the person at home (biz hrs, and non biz), then tape to their door (also mail regular & certified).

o If more than one tenant, MUST give copy for each.

o substituted svc = must leave w/ person who lives or works there, cannot just leave w/someone visiting.

o LL must name all proper parties. (roommates? unclear, but probably so, roommie has no real relationship to LL tho)

o Roommate side issue:

▪ roommate in RS apts cannot be charged > 50%. There is no curing this. LL can bring a HO to terminate and both tenant and roommate must move out. in a hot market, LL will look at all the ways to get possession.

▪ Roommate can bring DHCR or small claims case for overcharge amt (but caveat is that they will NOT get to stay in apt if LL then brings HO to get tenant out)

• Succession: RC/RS/Mitchell lama/coops/80-20s

o family members have the right to succeed to RR apts if they overlap

▪ must be family member (as defined by law)

▪ must live w/prime tenant as their primary residence for 2 years prior

▪ prime tenant must leave (and relinquish the apt) or die

▪ person succeeding must prove all of the above

o LL can inquire 1x per year who lives in the apt, the relationship and whether they intend to claim succession rights only

o non-traditional family members need to establish the relationship first

o First succession triggers no increase, but the 2nd one does.

Defenses:

• Defects in petition: nonpayment petitions must be

o accurate & complete

o must have regulated status of premises if any

o apt must be registered (if > 3 units?) w/DHCR and must have MDR # on petition

o must have all proper parties

o petitioner MUST have right to sue, i.e. must have L&T relationship w/respondent

• Defenses: answer can be written or oral

o payment

o tender & nonacceptance

o partial payment

o warranty of habitability. (quiet enjoyment). Proof can be oral testimony.

▪ there are codes

▪ NOTICE:

• this is a crucial defense in np. to invoke it LL MUST be on notice! for outside things like elevators & boilers & common areas, notice is implied. For other things, telling the super is notice.

• evidence = photos, heat logs, testimony, etc

Judgments:

• tenant has 5 days to satisfy judgment

• when settled by stip, parties can negotiate another schedule. Execution is stayed pursuant to the schedule

• marshal must serve notice of eviction if there is a judgment of possession (tenant doesn’t pay or comply w/stip?)

8.

Nonpays:

• demand for rent, oral or in writing. check lease, it may say it must be in writing.

• If in writing, must be 3 days before ct papers are served

• ct papers: npp. service is personal, substituted or nail & mail. the last 2 require 3 copies (one served on substitute or nailed, 2 mailed: certified and regular)

• unlike HO, a nonpay doesn’t have a return date. Tenant must go to Housing ct to L&T clerk’s office within 5 days of receiving the papers from the LL. If late, still go to L&T clerk’s office. Give answer to clerk orally or in writing (note, sometimes resource center will tell them what to include on an answer, so be familiar. but the RC cannot write it out for them (ghostwriting)

• if answer in writing b/4 going to L&T clerk, serve it on LL or LL’s lawyer and then bring to L&T clerk with an affidavit swearing how tenant served it.

• defenses

o didn’t receive copies of ct papers (see “traverse hearing”)

o improper service of ct papers

o LL did not demand rent properly (check this, how improper? if there is a lease, or if didn’t give them 3 days or specificity issue? look up proper demands. I think there is a “reasonableness std” but Volunteers (V.A.s) should know to look for defects in the rent demand… or is reasonableness for holdover predicate notices?)

o tenant has paid all or part (do they have receipts?0

o LL is suing for wrong amount

▪ rent is not the amt agreed to in lease

▪ rent is not legal amount (RS/RC overcharges? VA should be alert to what rents can be in these buildings)

▪ LL owes money b/c of rent overcharge

o Apt needs repairs, or services

o Tenant receives public assistance and there are housing code violations

o Apt is not properly registered (MDR) or is illegal (mdr is for 3 or more apts)

o LL waited too long to sue for nonpayment (this is hard to prove, not a great defense to give a pro se tenant)

o Ct papers list your name wrong

o person suing is not the landlord they must allege and show a L&T relationship with tenant. (be alert for this one, it came up)

• L&T Clerk will stamp on answer & npp when to return to ct and the part assigned. this will be a resolution part. Usually the date is 1wk after giving answer to clerk.

• If tenant does not answer petition or doesn’t go to ct on ct date, LL can get a final judgment and have a city marshal serve them w/notice of eviction. Then they must go immediately to L&T clerk and ask for OSC. (see below)

i.

a. Note on H.O & NP:

i. they are mutually exclusive, BUT: crossover issue: LL can bring a H.O. proceeding for chronic nonpayment. Warn tenants of this if you see by court history or papers that LL has brought numerous nonpays against them.

b. HP actions:

i. definition: tenant brings action AGAINST LL for failure to make repairs, etc. If repairs are pursuant to a stip of settlement, LL has 45 days to make the repairs etc. Rent abatement is NOT possible w/HP, the only thing tenant gets is judgment against LL to make them do the repairs.

ii. Failure to make repairs/code violations, etc. can also be defenses to Nonpays. (H.O.s too?)

c. Illegal lockouts

i. there is NO LL self help in NY. LL or prime tenant that illegally locks someone out is liable for ???

9. Overview of court resources:

a. forms in the center:

b. what’s on 2nd floor:

c. what’s on first…(who’s on first?)

i. room 107: housing ct

ii. room 105: department of social services

iii. room 104: resource center

10. Overview of papers

a. demands

i. 3 day demand for rent

ii. 10 day notice to cure/terminate

iii. 30 day notice to terminate

iv. notice of petition & petition

v. marshall’s notice

11. First questions in basic action: Intake process:

a. Explain that you are volunteer attorney for the court, and cannot give legal advice

b. Court history: shows prior and current ct dates, shows type of action, names of parties

c. Where is client in the process?

i. Intake person asks: Does client have a case on (is there a court date)? if not, quick questions can often be answered at the desk. If yes, what does client need to know/or want to do?

ii. Has client been here before?

d. Who is bringing the action (tenant/ landlord/roommate)?

i. If client is bringing the action, usually it will be roommate/licensee that they want to get out. Sometimes it is a landlord.

1. 30 day notices

a. how is the roommate paying rent? if weekly,

e. What kind of action? Get the story from history & from client

f. Review the court papers (client should have them, can get them from…what room?)

g. Is the apartment rent regulated

i. RS/RC overview

ii. How to figure out proper rent increase

iii. Overcharges

h. review the lease if any

i. has client received Marshall’s notice? the person has received eviction notice. they need to do an OSC to stay the action…(this is in some of the handouts)

j. for demands: tenants may think they have to move out by the date of the demand period. this is not the case. If they stay, then the LL can bring a proceeding after that date.

12. Manhattan Issues

a. H.O.s (what is the procedural posture? is the person bringing the action or defending the action?)

i. nonprimary residence

ii. succession rights *

iii. roommate/licensee*

iv. chronic nonpay

v. defenses: has the problem been cured?

b. Nonpay:

i. can always be cured

ii. can they pay? did they pay (do they have proof?)

iii. repair issues as defense

iv. one shot deal and other charities or loan assistance

c. For both of the above: optional defenses (in answer): check for

i. proper service

ii. defects in petition

1. mdr # if over 3 units in apt MUST be in petition??? Is this right?

2. must show regulated status

3. there must be a L&T relationship of some sort to bring a proceeding, petitioner must allege the relationship

4. respondent not properly named

5. petition brought before demand period up (for nonpay…also for HO?)

iii. defenses to petition

1. primary residence (proof = tax forms, DMV registration, voters registration etc.)

2. succession: person must have lived w/the primary tenant for 2 yrs prior to death and be a relative …(look this up, give resources)

d. Roommate Issues

i. overcharge/profiteering

e. Tenant credit agency reporting

i. American assurance??/

13. HP Actions: \

From tenant’s guide (blue pamphlet)

Cases brought by tenants:

• Illegal eviction proceedings: tenant asks ct to order LL to let her move back into apt after she’s been illegally evicted

• HP proceedings

• 7A proceedings: 1/3 or more of the tenants in a building ask the ct to take control of the building away from the LL & give to ct supervised admin. if tenants win, admin is appointed, collects rent & makes repairs

Service: Note: improper service is of course usually just a way of buying time, b/c LL can always just serve again, and or there may be traverse hearing to determine if svc was proper.

• personal deliver

• substituted svc

• nail & mail

• TRAVERSE HEARING:

o if not served properly, tell clerk or judge. Judge may decide to set a date for a traverse hearing to determine if svc was proper. If judge finds svc was improper, case will be dismissed (but LL will just be able to bring it again

Subpoenas:

• if client has trouble getting documents or witnesses they can subpoena. there are forms in L&T clerk’s office, and also RC.

The parts:

• Resolution part: is the first ctroom where L&T try to settle case

• Trial part: if L&T cannot reach an agreement, it goes to trial part. The LL will have to prove her case against tenant and tenant has to prove claims

Adjournments:

• One caveat w/adjournments is that the tenant may have to deposit rent LL claims is owed if there are more than 2 adjournments or if the case has been in ct more than 30 days.

Stipulation of settlement:

• Stips settle the case, usually easier in a nonpay, b/c all LL wants is rent. VA should ask whether the stip has been complied with, have a look at the stip and warn person that they agreed to these things.

• Stips can be vacated, judgments must get an order to show cause. (is this true?)

• How to vacate a stip?

• Caveat: Attorneys fees. There is new caselaw on these, look up.

Notices of Eviction:

• if served w/eviction notice, tenant can be evicted

o 4th business day after personal svc

o 6th business day after other 2 types of svc (note, must be served properly, BUT caution tenant that they should act immediately on it even if they think svc was improper, b/c it may be difficult to stop the eviction otherwise)

• notice of eviction can be served ONLY after ct issues a warrant of eviction. In a nonpay, after the warrant is issued, even if tenant pays the rent, the LL may still evict. Tenant must get a written signed statement form LL that she won’t evict, OR get an OSC stopping or putting off the eviction.

• OSC: go to L&T clerk’s office and ask for OSC. Call city marshall’s office listed on notice (we also have lists in the RC of marshals) and ask if a date has been set for eviction. Tell tenant to call every day until she finds out, but get the OSC before that…

OSCs in general

• ask for osc form

• fill out affidavit

• OSC for defaulting in coming to ct

o person must show:

▪ good reason for not coming to ct

▪ good defense against LL’s claim

• for a nonpay, it is difficult to get judge to sign OSC stopping eviction unless tenant can deposit the judgment amt w/ct, or unless tenant can prove a delay in dept of social svcs.

• if judge denies it, tenant CAN try to get an appellate term judge to sign, but they usually won’t unless tenant can deposit the entire amt w/ct.

• Service: if judge signs, OSC must be served …

o deliver to LL’s lawyer or LL,

o deliver to city marshal if there is a warrant of eviction. Clerk can also call the marshal if the eviction is same day, or different borough.

o clerk will give tenant an affidavit of service to fill out after they have served the osc. this must be signed and notarized. Can also have the LL or their lawyer and the city marshal sign, date and stamp the OSC when received. Must have either a stamped or signed copy of OSC OR and affidavit of service when tenant goes back to ct.

Misc:

• tenant can & should request a housing inspection if they are alleging repairs.

• HP proceedings: cost is $35, payable by money order made out to clerk of the civil ct. Can also request a fee waiver.

• 7A proceedings: need 1/3 of all tenants. Can get help from cts pro se atty, the HPD tenant assistance unit or other organizations

Notes:

Program I:

Ethical issues:

• Unbundled legal svc

• Hotlines

• help desks

• ghost writing: assisting a pro se tenant in this way may actually hurt them, b/c judge will see them as represented

o lawyer should be able to prepare papers, but must identify herself

Resource center:

• Marshal eviction: move for OSC

• fill out ct form, person can add exhibits

• Must have familiarity w/state agencies, Jigetts, DHCR, etc

Rent regulation

• DHCR: RS & RC

• regulates private residential buildings

• RS: tenant must have lived there continuously since 71 (or succession) before 53 for RC (succession

• > 6 units RC, once vacated become stabilized?

• * Ask person to go to DHCR to find status of building if they don’t know (can look up?)

• Possible issues:

o Maximum base rent (rent control) (note: check this stuff)

▪ can be adjusted upwards 2.5% every 2 yrs.

▪ MBR is what LL could get for the apt

o Maximum collectable rent = the amt LL can collect.

o LL must apply for increases in these #s. So can find out and check the numbers. Tenants can use DHCR

• Rent control is dying out.

• RS

o > 6 units built between 47 & 74 (there are newer ones too?)

o on petition, the petitioner MUST allege regulated status of building, it is a fatal defect if wrong

o Rent guidelines board: . In june, they set vacancy and renewal rates that a LL can get for RS apts.

▪ vacancy increase = how much LL can get when apt is vacated – 17 - 20% (see handout), if LL didn’t get an increase w/in 8 yrs, can add .6%. Also, can get 1/40th of new appliances. this 1/40th is a permanent increase to rent.

• note: person can get their own new appliances, but cannot deduct from rent.

▪ renewal lease: tenants in occupancy must consent

▪ MCI: must be approved by DHCR. This is a building wide permanent increase for capital improvements to the building (elevators, boilers, etc). MCI adjustment cannot be charged without DHCR approval and can be challenged in a DHCR proceeding.

▪ Attys should have a working knowledge of what the increase should be, and what owners can seek from tenants.

o Overcharge: can’t go back > 4 yrs for an overcharge. can be litigated in either Housing Ct (as a defense to nonpayment) Or DHCR.

payment/tenant help options:

• One shot deal:

o person does NOT need to be on public assistance

o they must pay it back, (probably have to show that there is a good possibility that they can pay back)

o also available to coop owner, but they will keep a lien on your share until paid back.

HP Actions:

• tenant initiates these for repairs. Not so common b/c usually repairs are used as a defense.

• Fee is $45 to start.

• good to bring these proactively sometimes, prior to having to deal w/nonpayment. Let tenants know, about Housing Maintenance code(check this?)

• no abatement possible w/HP proceedings. Tenant just gets an order from ct to correct & repair & LL can be held in contempt for noncompliance.

Rent reduction (abatement) nonpayment world: Can get a DHCR reduction

• Abatement is predicated on

o how long condition has lasted,

o the damage caused by the condition

o CAVEAT: warn tenants to be very careful about repair and deduct. Courts don’t like it…

Housing ct has

• Resolution part

• Trial part

Caveat about counterclaims: very often they will be severed to a plenary action (civil ct)

Tenant credit reporting agencies:

• this comes up in manhattan. These agencies keep track of every time tenant is in court, even if settled. Then LLs look it up and won’t rent to you.

• note: there is recent caselaw? but not settled. This changes the advice attys can give to tenants, i.e. they cannot advise them anymore to withhold rent

Section 8

In general, Section 8 refers to the federal housing allowance program that provides rent subsidies in the form of vouchers and certificates for low-income households. Established in 1974 as part of the Housing and Community Development Act, at the heart of the program is a housing allowance is to provide a low-income household (usually-based on a percentage of income) to rent a housing unit of better quality than they could unassisted. The New Construction, Substantial Rehabilitation and Moderate Rehabilitation Section 8 subprograms (in which subsidies were made to developers to encourage the building of affordable housing) in the 1974 Act have been phased out.

In New York City, the program is administered by The NYC Housing Authority (NYCHA), the NYC Department of Housing Preservation and Development (HPD) and the NYC Department of Homeless Services (DHS).

NYCHA handles the bulk of vouchers and certificates in NYC, according to NYCHA 77,000 families use vouchers and certificates in private apartments. If you wish to apply, or are participating but have a question, call the City's Citizen Service Center by dialing 311 or check out their website.

Some tenants living in buildings rehabilitated through HPD programs may receive Federal Section 8 subsidies administered by HPD. Tenants who are now receiving Section 8 benefits through HPD, or building owners with tenants receiving such benefits through HPD, can call (917) 286-4300 for assistance. You can also follow this link to the HPD Section 8 web page.

DHS administers a Section 8 program to assist homeless families and singles in locating suitable permanent housing. This includes individuals and families currently living in the subway and Amtrak systems of the City. Also included are those households who are in substantial danger of becoming homeless due to a destabilizing event. To apply, contact DHS through the City's Citizen Service Center by dialing 311.

 

Notes from Resource center: Starting wk of 9/21/05:

1. Illegal lockout: 2 tenants, one out of town. They lock subtenant out illegally, then serve sub with HO proceeding. She has case against them for lockout. Also can allege possible overcharge.

a. issues: illegal lockout. they threw her stuff on street. She has witnesses

b. there are 2 prime tenants. One of them brought the HO petition, but in general must have the consent of the other or judge may toss it

c. MDR # needs to be on the petition

2. Holdover for subletting

a. served 2 notices to cure

b. she cured, and also says never sublet in first place

c. her question is that LL is bringing a lot of frivolous actions against her

d. rent stabilized

e. recommend conference w/ court in resolution part

f. Issues to look at

i. how papers were served (personal), must be 5-12 days before return date

ii. notices to cure were served by mail

iii. She says gave LL notice she’d gone away? by not answering, LL is maybe deemed to consent, b/c he didn’t bring case until 6 wks after she was back

g. can give info on sanctions

3. nonpayment

a. LL says she owes 4 months, she has 1 months rent

b. Defects on face of papers: check

i. LL name & address: LL has PO box to the corporation (cannot do that, a corp has to have a mailing address for svc?)

ii. MDR: LL gave a NJ MDR # for the building, cannot do this b/c it is pled in manhattan (also, isn’t it a manhattan building?

iii. Person who brought petition is not the owner of the building, and does not allege his relationship in the petition. This is a defect, there must be a L&T relationship in order to bring the petition.

iv. All this buys time. Badly pled petition.

4. Assigned case:

a. Dept of aging: If person is over 60, judge or ct atty can recommend he gets an atty. Then RC interviews him, sends his info to an admin judge who in his discretion decides whether the case warrants an atty.

b. SCRIE rent caps

c. This man’s section 8 subsidy was taken away b/c his fire alarm needed batteries.

d. Basically have to figure whether person is

i. over 60

ii. case warrants an atty (that’s the discretionary part. sort of have to advocate for them getting an atty…case is complex, they need help, etc…)

FAQ:

• always check ct papers for defects

• check service for defects

• check timing of service and ct dates

• can the petitioner bring the action

• check MDR#

• Illegal lockout remedies

• Legal lockout (marshal’s on door) what do you do (OSC), did they receive notice?

• Dept of Aging

• If holdover cured, what now if LL still brings case

• NP: has it become chronic? if yes, LL can bring holdover

• How to buy time

o adjournments (caveat, b/c if you adjourn more than 2x, or case is on more than 30 days, tenant can be required to front the rent money in dispute..)

o defects

o age

• one shot deals and charity payment loans

• what is stipulation

• Qs about negotiating w/opposite side

• BE alert for conflicts

• Regulation succession issues

• Rent overcharge

5. Post eviction: marshal’s lockout on door

a. defense: no notice or anything, go to 2nd floor, fill out form saying she never got any ct papers, (traverse hearing?), also, rent paid

6. Conflict case:

a. assigned case for mother, but son is the one who is claiming succession, so high probability of denial.

b. conflict is that ct atty used to work for firm bringing case against them

7. Nonpay: financial difficulties. She has been behind a lot before but has always made good. has been in building for over 10yrs, now they are takking her to ct.

a. Rent stabilized

b. One shot deal or charities want you to pay back

c. too many nonpay cases and LL can bring holdover for chronic nonpay. these have become popular in the past 2 yrs as LLs seek to get people out of the building

d. can get an adjournment but caveat about doing it (tenant deposit)

e. can get time from LL’s atty if agreed to by stip.

f. what happens if they want a stip for pymt at a certain time & she can’t?

g. must be very careful about stip, can conference w/judge or ct atty & other side in resolution part

h. if it goes to trial, and there is judgment, she has to pay w/in 5 days or eviction..

9/22/05

• Note: question re: joint ownership. If a tenant abandoned tenancy, can the other person get her off the lease?

• 2nd floor for OSC (225?)

• *if they have a lawyer, we cannot help them (goes into preliminaries)

1. Nonpay. There was a stip of settlement for payment. The tenant is sending checks (post dated), but the LL has not cashed the last 3. She wrote a letter to them.

a. if tenant doesn’t comply w/stip, LL can get 10% of tenant’s gross income (garnish?)

b. if there is fixed judgment, LL CANNOT get more

2. Nonpay:

a. defense: repairs

b. they gave her abatement earlier by stip, but she wants to tell judges about prior repair violations. ( In general, a stip wipes things clean, but LL is bringing new nonpay?). Can conference w/judge and show photos in her defense

3. Holdover: *Nuisance.

a. the notice of termination was mailed only, she was not properly served.

b. Rent stabilized

c. Nuisance holdover, LL is claiming she is a packrat. With nuisance, there is usually no notice to cure required, b/c a nuisance is considered noncurable. However, fran says that for cleaning violations, most judges will give an opportunity to cure anyway)

d. Her defenses: (answer forms in 225)

i. improper svc (no in person or reg mail)

ii. she made 311 calls and complained about conditions in the building (this puts LL on notice). no repairs were made b/c super not av?

e. For resolution, explain her options

i. judge could send an inspector

ii. could try to adjourn first case to try to wk out w/LL

iii. could bring in photos to ct, could let LL in to look OR (better option) have an independent inspector come in.

iv. to get a resource inspector from judge, she needs photos

f. *to adjourn:

i. go in

ii. prepare & file answer

iii. ask for adjournment

4. Notice of termination. Tenant overcharged subtenants but paid it all back. Overcharge is a violation of RS § 2521. (look this up) if charge > ½ for roommate. If you overcharge, you can be evicted & LL wants to get them out, but if you pay back, maybe then you have a defense… (look up caselaw on this?)

a. but this gets complex: the mother is over 60 and is eligible for assigned program. Also gets SCRIE which is paying for part of the apt, even tho mother is not living there for 2 months, and even tho they accepted this overcharge from the subtenant. The acceptance of govt money makes it a problem, govt can allege fraud…

i. involvement of 2 govt agencies is problematic also. Social SVC and SCRIE.

b. what they can do: (get a lawyer!!)

i. see if LL pursues the govt agency thread. can allege retaliation, b/c there is an order granting tenant triple charges for something LL did

ii. mother is sick, so advised to get records of that

iii. tell truth, speak to DHCR (mother was sick, they had no money, didn’t know about overcharging, were just trying to hold onto apt, they’re sympathetic, SSI reduced)

iv. Get Dr stuff for defense, and orders from ct of awards v. the LL

v. pay back govt benes? (dunno but probably)

vi. give lists for senior housing

10/12/05:

1. non primary residence

a. LL asserts he lives “elsewhere” – this is a legal conclusion, not fact.

b. paper defect: LL does not allege any other address. Bare bones. This is not ok.

c. Defenses:

i. golub notice is defective: states legal conclusion only

ii. npp is not served properly

iii. he has documentation that he lives there as primary residence; also

2. GF never paid rent and did a TRO against him.

a. licensee problem. If no rent paid, person can say they are “spouse equivalent”.

b. Can try to evict her, but it may well be tossed out.

c. he should check his union for legal advice

d. Does 10 day notice to quit for licensee. serve at least 10 days before the end of the month.

e. There is caselaw on “spouse equivalent” Minors v. Tyler.

3. marshal’s notice:

a. Judge declined her OSC for no meritorious defenses

b. The notice implies month to month tenancy. She needs to find out if she has lease & RS. If RS, she has right to renew, she can’t be month 2 month. Shd go to DHCR

c. meritorious defenses

i. should be RS

ii. called health dept w/complaint (possible retaliation)

d. do another OSC quick. Call marshal to find out when eviction scheduled

10/13/05:

1. Woman is on the lease w/her son in law from the beginning, they moved in together b/c her SIL and daughter got the apt for her.

a. RS. LL has offered no lease renewal.

b. She has proceeding in DHCR against LL

c. She has been overcharged already, and there is preferential rent, which LL is trying to get rid of and charge more now.

d. LL has accepted rent from her for 2 yrs?

Questions/notes:

• what is required for nuisance claim? very high bar to prove

• what is required for svc for nuisance? (no notice to cure req)

• what is defense for nuisance?

• HP proceeding as last resort, or DHCR decrease in svcs (what is DHCR decrease in svc?)

• Is super required to live in building?

• Rent overcharge IS curable if they pay back.

• SCRIE caps on rent

• Illegal sublet proceedings?

• Note what websites are a/v in resource center public computer (DHCR/HPD, etc)

• Attorney fees issues. see caselaw

• Preferential rents: see

• lease renewal issues: RS – LL must offer At least once every two years, rent-stabilized tenants renew their leases. The landlord must offer a new lease between 90 and 150 days before the old one expires. If the landlord doesn’t offer it on time, the tenant can have the renewal date be either the day after the old lease expires or 90 days after the offer

o enants should realize that they don’t lose any rights by not having a current lease. Their rights are in the rent laws. Leases under rent stabilization are superfluous landlord-oriented documents superimposed onto the rent-stabilization laws to provide landlords with the opportunity to intimidate their tenants. The chief intimidation is, of course, the fear of eviction growing out of the commonplace belief that, without a lease, the tenant loses the right of security of tenure.

o Rent-controlled tenants know better. Because that law does not tie rent adjustments in any way to leases, most landlords never bother to ask the rent-controlled tenant to renew their lease, although the landlord has the right to in the law. Landlord lobbyists added leases to the bill that created rent stabilization to empower landlords. Without leases, rents of all stabilized tenants could be adjusted annually or biannually without the trouble, pain and abuse. Nothing else would change, and landlords would lose a big weapon

• says: Beware of advice from DHCR.

• Back to a landlord’s improper renewal offer. Besides writing to your landlord to register your objections to the lease offer, you may want to file a complaint with the DHCR on their Form RA-90, Tenant’s Complaint of Owner’s Failure to Renew Lease and/or Failure to Furnish a Copy of a Signed Lease. This is usually only advisable when the dispute threatens to go to Housing Court. DHCR decisions often ignore the tenant-protection provisions in the law and code. However, filing with DHCR shows an extra level of seriousness on your part to resolve the issues in your favor, even if you distrust DHCR. A Rule: Always retain copies of all documents, and use regular mail with smaller landlords and managing agents; they often will not accept certified mail, as it usually means trouble. Certified is good with DHCR.

Complaining about a rent overcharge in New York City

By Kenneth B. Hawco, Esq.

This article explains the three options available to rent stabilized tenants in New York City who want to complain that the rent they pay is more than the law allows under the rent regulated systems in New York City and suggests that having such complaints decided by a judge is almost always a better option for tenants instead of filing a rent overcharge complaint with the New York State Division of Housing and Community Renewal (DHCR), the state agency that processes and decides such complaints, which, it is suggested, is the least favorable option for tenants.

The law allows tenants three legal options to complain about a possible overcharge in rent. The three options are: (1) starting a lawsuit in court, either in Supreme Court (if the amount in controversy is over $25,000.00), or in Civil Court (if the amount in controversy is under $25,000.00); or (2) withholding rent, thereby forcing the landlord to start a non?payment proceeding in Housing Court, then raising a rent overcharge complaint as a counterclaim (suing the other party who sued you in the same lawsuit is called a counterclaim); or (3) filing a rent overcharge complaint with DHCR.

Supreme Court or Civil Court

The option of starting a lawsuit is a good option (and possibly the best) because the rules of procedure in Supreme Court and Civil Court are much better from a tenant's perspective, than being involved in a lawsuit in Housing Court, because discovery is available in a Supreme Court and Civil Court case, but only available with permission in a Housing Court case, and hard to get in rent overcharge situations. (Discovery is the process whereby one party to a lawsuit can obtain information from another party to that lawsuit before trial.)

Housing Court

The option of withholding rent and forcing a landlord to sue the tenant for non-payment of rent, so that the tenant can raise a rent overcharge complaint as a counterclaim, is a good option. The slight disadvantage of this option is that a tenant counterclaiming in a Housing Court case will be in a defensive posture, rather than an offensive posture, if suing in Supreme Court or Civil Court.

Most residential leases contain a provision that will allow a tenant to recover from the landlord all of the attorney's fees the tenant incurred (but not necessarily paid) in prosecuting a rent overcharge complaint in a Supreme Court or Civil Court lawsuit or winning a non-payment case in Housing Court with a successfully rent overcharge counterclaim. If a residential lease contains a provision that states that only a landlord can be reimbursed its attorney's fees if it is involved in any lawsuit with a tenant, the law in New York implies a reciprocal provision in the lease so that the tenant will be able to recover from the landlord his or her attorney's fees. In other words, if the tenant wins a lawsuit, wherein the tenant successfully raised a rent overcharge complaint, the tenant will likely have his or her attorney's fees paid for by the landlord.

DHCR

The option of filing a rent overcharge complaint with DHCR is the less desirable option, but perhaps because of their unawareness of the pitfalls of filing a rent overcharge complaint with DHCR, it is the option tenants seem to select the most. A rent overcharge complaint filed with DHCR is less desirable because it takes a very long time to have DHCR decide a rent overcharge complaint (literally years), and in the event the tenant wins, the landlord can file an administrative appeal with DHCR for free, because the landlord does not have to put up the overcharge award amount. Also, the administrative appeal will likely take a few more years. In contrast, in a Supreme Court or Civil Court case, the case will probably be resolved in weeks or maybe months. If the landlord loses and wants to appeal, it will have to put up the judgment amount, or post a bond ?? the equivalent of the full money amount awarded to the tenant. Having to put up the full judgment amount as a condition of appealing is certainly a disincentive for a landlord to appeal.

Filing a rent overcharge complaint with DHCR seems like a good option because it can be done for free and without the assistance of a lawyer. This option, however, is actually penny wise and pound foolish, because almost every landlord uses sophisticated lawyers to respond to rent overcharge complaints and DHCR does not give unrepresented tenants any help or special guidance.

Furthermore, tenants should be aware that many tenants who at first win rent overcharge complaints at DHCR at the first level (known as the Rent Administrator level), invariably find out that they ultimately lose after the landlord files an administrative appeal with DHCR (called a Petition for Administrative Review commonly referred to as a PAR). This common result occurs because DHCR, which is a very pro?landlord government agency, strategically put pro?landlord people in the PAR units, so they can overrule the rent overcharge complaints that are decided in a tenant's favor at the Rent Administrator's level.

If a tenant loses at the PAR level, the next step in the appeal process is the tenant can challenge DHCR's unfavorable decision by bringing a lawsuit in Supreme Court called an Article 78 proceeding (which is different from the rent overcharge lawsuit that a tenant can start in Supreme Court ?? which was discussed above as one of the three options for complaining about a possible rent overcharge).

Unfortunately, an unrepresented tenant having lost at the PAR level usually seeks the help of a lawyer for the first time. By then it may be too late to salvage the case, because the Supreme Court judge can only review the evidence and arguments put before DHCR by the parties. If the tenant did not have the help of a lawyer while the rent overcharge complaint was pending before DHCR, it is likely that the record will have been inadequately developed. (All the documents and arguments put before DHCR by the parties is collectively referred to as the record.) Thus, if a lawyer is consulted too late in the case, more time and money might be spent fighting a case that well might have had merit, but because of the tenant's inexperience, the landlords experienced lawyers may have been able to turn into a loser.

Consequently, filing a complaint with DHCR is a cheap way to go, but it will take far longer than the other two options (and the tenant must pay the rent that is believed to be too high while DHCR ponders the rent overcharge complaint for years). Also, the tenant (likely inexperienced in these kinds of matters) will be up against sophisticated lawyers who know how to deal with DHCR very well, which may result in a losing decision for the tenant.

Conclusion

It is suggested that any tenant considering raising a rent overcharge complaint avoid the option of filing such complaint with DHCR. Instead, consult a pro?tenant lawyer, who should be able to determine the potential merits of the case and if it is determined that the case has merit, explain the advantages and disadvantages of either starting a lawsuit in Supreme Court or Civil Court, or withholding rent, so the rent overcharge issue can be raised as a counterclaim in a non?payment proceeding in Housing Court, or filing a rent overcharge complaint with DHCR. (If the lawyer you consult with quickly suggests you file your rent overcharge complaint with DHCR, perhaps that lawyer is unfamiliar with this area of the law and the tenant should seek the advice of a lawyer who has more expertise with this specialized area of the law.)

DISCLAIMER: The opinions expressed are those of the author. This information is offered only for general information purposes. It is not offered and does not constitute legal advice or legal opinions. You should not act or rely upon this information without seeking the advice of a lawyer.

Kenneth B. Hawco is a Tenant Attorney practicing in New York City. He may be reached at (212) 874-7717, email: kbhawco@ and web page:

Include:

• section describing common ct process, & where most RC clients are in that process

• include map & locations section?

• include descriptions of other agency jx & proceedings & where to check for LL’s compliance w/agency regulations

• HPD website faq

• DHCR faq

•

• Section 8

• Rent guidelines board

• what is Jiggets?

To check for in each case:

• Relationships: L&T, roommate, licensee, succession, etc. make sure person suing has standing to sue

• predicate notices – defects

• RS & RC

• what stage is case?

• end game options?

9/28/05:

1. Section 8, RS. LL taken to court for HPD section 8 (there are 2 types, HPD and ??). The issue here is that Sect. 8 hasn’t paid the LL? Tenant has been served w/ 3 npps, and wants to sanction the LL. LL is probably just suing to get HPD to pay. Anyway, the npps are on tenant’s credit report (tenant reporting agency issue – First American Cred Agcy).

a. can subpoena Section 8

b. **petition didn’t even allege Sect 8 so they are defective, LL must allege section 8 in petition. Conference w/ judge and contact cred agency

2. licensee issue: Client not on lease, primary tenant has not been there for 3 yrs. client has been paying to prime tenant(?? or LL?). Has paid prime tenant overcharges. They never lived together, prime tenant (cousin?) still has succession rights

a. Q is whether LL created a tenancy by accepting rent from client?

b. also, profiteering & illusory tenancy.

c. If client pays rent, the case is over

d. if cousin wants her out, she needs to start a case against her, cannot just lock out a subtenant/roommie

e. Illusory tenancy: to circumvent RS law…(look up?)

f. if cousin defaults, it terminates both her rights and client’s rights as licensee, so be careful about bringing overcharge against her.

g. there is no john doe on petition

h. she should go to 2nd floor and make it clear that she is NOT the tenant and has not been acting for her…?

3. Tenant cred agcy case: there was a settlement by stip of a 2003 case. First American credit report of 2 yrs ago remains on his record.. Caselaw says, no private claim av under fed law, for credit agency protection, but under NY law maybe? NOTE: npps if given index # go into the ct computer and are accessed by these agencies. They stay on the record regardless of the case’s diposition.

4. ** recurring issue: Tenant who wants to get out a subtenant/roommie/licensee. The issue is whether they can give a 30 day notice…problem is if and when they agreed to accept rent. If the agreement was for monthly rent, no problemo. If for weekly, or worse yet no agreement, then judges have become strict about using 30 day notices. If they use a 30 day notice for a weekly tenant, some judges will toss it.

5. Section 8: can subpoena the agency (there are 2 different Section 8s, HPD and ???)

a. rent breakdowns, tenant should get these from LL ??

6. SCRIE issues, rental cap Dept of Aging

7. Non primary residence issues: tenant should get together all their proof of primary residence: voter’s registration, tax forms, utility bills, driver’s license, car registration, etc.

8. Succession question: what is income affidavit? (put in “how to establish succession” section)

Overcharging: note: below from

REGISTRATION

Under the Omnibus Housing Act of 1983, owners were required to

register the rent of every rent stabilized apartment with the

DHCR by July 1, 1984. That initial registration also included a

detailed record of all services provided in the building.

Landlords are also required to update the registration statements

every year. This information must be made available to tenants

for a period of up to four years prior to the date of a tenant's

request for a rent history. You should check the accuracy of the

annual registration statements that you receive and keep them for

your records.

The rent registration system is intended to make it easier for a

tenant to ascertain the correct rent for his or her apartment and

should reduce rent overcharging by landlords.

OVERCHARGES

The laws guarantee refunds to rent controlled and stabilized

tenants who are overcharged on their rents. The amount of the

refund is determined according to the tenant's classification.

For RENT STABILIZED tenants:

Tenants filing complaints after April 1, 1984 are entitled to

refunds of all overcharges for a period of four years prior to

the date the overcharge complaint is filed. If the overcharge is

determined to be willful, an amount equal to three times the

amount of the overcharge must be refunded to the tenant; however,

the treble damage penalty is limited to two years of the

overcharge. Tenants are also eligible for interest payments and

attorney's fees.

For RENT CONTROLLED tenants:

Rent controlled tenants are entitled to a refund of overcharges

for the prior two years from the date the complaint is filed.

They may also sue in court for up to three times the amount of

the overcharges.

The Division of Housing and Community Renewal is required to

resolve all rent overcharge disputes involving both rent

controlled and rent stabilized tenants.

Rent Regulation:

RENT CONTROL AND STABILIZATION

You are probably a rent controlled tenant if (a) your building

was constructed before 1947, (b) you moved into your apartment

before July 1, 1971 and (c) your building contains three or more

housing units. Rent controlled tenants are also called statutory

tenants.

You are probably a rent stabilized tenant if (a) your building

was constructed before January 1,1974, (b) you signed your

initial lease or a renewal lease after July 1,1971 and (c) your

building contains six or more housing units.

Buildings first occupied after January 1,1974 are frequently

subject to the rent stabilization law if they received property

tax benefits under either the 421-a or the J-51 tax programs.

The 421-a program affects new construction. In buildings that

were occupied before July 3,1984 tenants will retain their rent

stabilized status even after the 10 year tax benefit period

expires. After the 10 year period expires, new tenants are not

rent stabilized. In 421-a buildings first occupied after July

3,1984 tenants lose their stabilized status at the end of the tax

benefit period if each lease and renewal has given notice of the

approximate expiration date of the tax benefits and of rent

stabilization coverage.

The program formerly known as J-51 affects buildings that were

substantially rehabilitated. Tenants in such buildings will

retain their rent stabilized status beyond the end of the tax

benefit period, unless each lease and renewal has given notice of

the approximate expiration date of the tax benefits and of rent

stabilization coverage.

Before you sign a new lease, you should examine the lease and any

riders carefully to see if notice is given of the expiration of a

tax benefit period and that the apartment will no longer be

covered by rent regulation after such time.

SUBLETTING

Rent stabilized tenants have the right to sublet under New York

State Law, provided they follow certain procedures. Any lease

clause that prohibits a rent stabilized tenant from subletting is

automatically invalid and may be disregarded.

Rent controlled tenants are prohibited from subletting their

apartments unless the landlord agrees to the sublet in writing,

or unless the right to sublet was specifically included as part

of the original lease.

In order to sublet your apartment, you must notify your landlord

in writing, and send your notice by certified mail, return

receipt requested. In your notice you must include the following

information:

-- the name of the subtenant;

-- the date the sublease takes effect and the date it

terminates;

-- the business address and the permanent home address of the

subtenant;

-- your reason for wanting to sublet;

-- your address for the duration of the sublease;

-- if the prime lease was guaranteed by a third party, the

written consent of the guarantor;

-- if the apartment is occupied by a co-tenant, the written

consent of the co-tenant;

-- a copy of the sublease, attached to a copy of the prime

lease, with a notarized statement signed by you and the

subtenant attesting that it is a true copy of the sublease.

In stating your reason for wanting to sublet, you must make it

clear that your absence will be temporary and that you intend to

return to the apartment as your primary residence, or the

landlord will have a valid ground to refuse your sublet request.

Once you have mailed this notice, the landlord has 10 days from

the date you mailed the notice in which to ask for additional

information. You may be asked to complete a questionnaire about

yourself and the subtenant. While such a questionnaire is

permissible. it may not be unduly burdensome by asking irrelevant

questions.

If no further information is asked of you, the landlord must

respond to your notice within 30 days of the date it was mailed.

If additional information is requested within the initial 10-day

period, the landlord must respond within 30 days of the date the

additional information is mailed.

A landlord who does not respond within this timetable is

considered to have consented automatically to the sublet.

A landlord may not withhold consent unreasonably. Reasonable

cause for denying a sublet request includes the inability of the

subtenant to pay the rent; a subtenant with a history of

disruptive behavior; or an intention to use an apartment in an

unlawful manner.

If a landlord does withhold consent unreasonably, you may proceed

to sublet without his or her consent, or you may contest the

decision in court. The law requires the landlord to reimburse you

for legal costs, including attorney fees, if you can demonstrate

that your landlord acted in bad faith.

If you sublease an apartment with furnishings, a surcharge of up

to 10 percent above the legal rent may be added. You may not

collect more than the legal rent. A prime tenant who overcharges

a subtenant is subject to a rent overcharge complaint requiring

that a penalty equal to three times the amount of the overcharge

be refunded.

No apartment may be sublet for longer than two years out of any

four-year period. Furthermore, a tenant who does not intend to

return to the apartment is prohibited from assigning the lease to

a new tenant unless the landlord's written consent is obtained,

or unless the lease specifically permits assignment.

SHARING APARTMENTS

A tenant living alone in either a rent controlled or rent

stabilized apartment may invite an additional occupant, and the

dependent children of the occupant, to share an apartment. An

unlimited number of the tenant's immediate family members are

also permitted to share the apartment.

If two or more people signed a lease, a new occupant may replace

a departing tenant, however, the total number of tenants and

occupants may not exceed the original number of people who signed

the original lease. Most important, one of the original signers

of the lease must continue to live in the apartment.

***SUCCESSION RIGHTS

State regulations now allow persons sharing apartments as members

of non-traditional families to have the same rights as

traditional family members to remain in rent controlled

apartments and to obtain renewal leases for rent stabilized

apartments after the tenant of record has died or permanently

vacated.

These "succession rights" are afforded to any person who has been

living with the tenant as a primary resident and who is able to

show a relationship with the tenant involving emotional and

financial commitment and interdependence. To protect privacy,

evidence of a sexual relationship may not be considered.

Many factors may be considered, including: the length of the

relationship; the sharing of household expenses; intermingling of

finances; engaging in family-type activities; formalizing legal

obligations, such as wills naming each other as executor and/or

beneficiary or having mutual powers of attorney; acting publicly

as family members; and performing family functions such as caring

for each other or each other's family members.

In addition, both traditional and non-traditional "family

members" are required to have lived in the apartment with the

tenant a minimum of two years (one year if the "family member" is

disabled or sixty-two years old or older) or, if they have lived

together a shorter time, from the beginning of the tenancy or of

their relationship with the tenant.

Generally, a non-traditional family member will have the burden

of proving that he or she had the required degree of commitment

and interdependence with the tenant to qualify for succession

rights. However, the burden can be shifted to the landlord to

disprove such a relationship by taking a simple step. Obtain from

the DHCR a form entitled "Notice To Owner Of Persons Other Than

Tenant Residing In Apartment", complete it and send it to the

landlord.

Any tenant wanting to protect the succession rights of a

traditional or non-traditional family member should be sure to

notify the landlord on the DHCR form and be sure the family

member retains proof of such notification. (If you have more than

one roommate, be sure that you are not indicating a violation of

the Apartment Sharing rules explained in the previous section of

this booklet.) If possible, have the landlord acknowledge receipt

of the form and the date of receipt on a copy, or send it by

certified mail return receipt requested.

SENIOR CITIZENS

The Senior Citizen Rent Increase Exemption Program prohibits rent

increases for many senior citizens who live on fixed and limited

incomes. This program is available for both rent controlled and

stabilized tenants. It is administered by the New York City

Department of Housing Preservation and Development (HPD).

To be eligible, you or your spouse must be at least 62 years old;

the combined household income must not exceed $15,000 annually;

and the rent must be greater than one-third of your disposable

income.

If your income is greater than the maximum, it is advisable to

check with HPD. Certain of your tax liabilities may be

deductible, bringing your income within the guidelines.

Rent stabilized tenants are required to sign a two-year lease in

order to be eligible for the program.

SUPERINTENDANT

If your building has nine or more units, a superintendent must

live in the building, or within a 200-foot radius. In addition,

the name and phone number of the superintendent must be posted in

a conspicuous location in the building. If there are fewer than

nine units in the building, a phone number of whom to call in the

event of an emergency must be posted

OTHER NOTES:

Attorneys fees: in general, the person who gets essential relief gets the fees. If stip doesn’t give fees, then no fees possible.

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