Following is a third set of answers to readers’ questions selected by Lucas A. Ferrara, a partner at Finkelstein Newman Ferrara who has practiced in the landlord-tenant arena for more than two decades.
His other responses may be read at the links below:
- First set of answers (Jan. 25)
- Second set of answers (Jan. 28)
- Fourth set of answers (Jan. 30)
- Fifth set of answers (Jan. 31)
I live in an apartment with hardwood floors and the lease states that 75% of flooring must be covered by rugs. The people above me do not have 75% covered and walk so loudly that the picture frames in my apartment rattle – it sounds like someone banging a rubber mallet on the floor. They are insomniacs and regularly wake us up at various times in the middle of the night (2am, 3am, 4am) and also every morning at 5am.
I’ve been a long time resident (15 years) of my building and now feel like my rights are being violated by these tenants of 2 years. Shouldnt the landlord provide me “peaceful enjoyment” of my premises and also enforce the lease by inspecting and requiring them to cover the floors with rugs? Do I have any legal recourse against my neighbors? The Landlord? Can I push to get them evicted?
James
Excessive noise and vibrations violate a New York State law known as the “warranty of habitability.” That statute — Real Property Law § 235-b — requires landlords to ensure that all residential rental units are free of conditions detrimental to the occupants’ life, safety and well-being, even when the hazards are caused by third parties (like fellow tenants).
If you have not already done so, document the disruptions (by date and time, etc.) and once you have compiled a log of events, forward a copy of that information to your landlord by receipted delivery. The data you supply can be used by the owner as the basis of an eviction proceeding against your neighbors.
If the conditions persist, and your landlord refuses to require your neighbors to carpet their unit (as required by the lease), then you will be able to assert an independent claim against your landlord for violating the law.
Keep in mind, that should you need to take the matter to court, the problem will be one of “proof.” To increase the likelihood of winning this kind of case, you may want to consider hiring an expert to measure the noise and vibration levels you are experiencing. An expert’s analysis will buttress your position and will likely be more persuasive than your mere recitation of the facts and circumstances.
In addition to withholding rent and asking a judge to award you a rent reduction or “abatement,” you may be able to get an injunction from your local Supreme Court directing the landlord to take all appropriate action to reduce or eliminate this annoyance.
Since there are pros and cons to every option, it’s best to speak to a lawyer so that you can arrive at a strategy that will best suit your purposes.
My landlord offers me $40K if I move out from my rent-stabilized apartment I’ve been living for over 10 years.
Should I take it? If I refuse to take it, can they still force me to move out?
Jack Rabit
Based on the limited information you have supplied, it’s impossible to determine whether the offer you have received is appropriate under the circumstances. There are many factors that influence an owner’s decision to offer a buy-out and we’re not privy to any of them.
Over the past two decades, buy-outs have ranged the gamut, from $0 to $16 Million. (That’s right, $16 million.) So, it’s certainly in your interest to with consult with a lawyer to see if the offer you received can be improved. (Keep in mind that some lawyers will work on a set-fee or hourly arrangement, while others may insist on a contingency.)
Whether or not you can be forced out of your apartment will depend on such unknowns as the owner’s plans for the building, the number of regulated residents remaining in the structure, and, whether you are perceived to have violated the lease or law in a way that would justify commencing an eviction proceeding against you.
I have been living in a rent-stabilized building since July 2004. However, the rent listed on my lease is a “preferential rent” and is thus lower than the legal rent. Does the landlord have the right to increase my rent at any rate? My building was recently sold to a new landlord, and the new landlord began raising the rents beyond the rent guidelines increase. Last year, my rent was increased by $830 (approximately a 34% increase) and I find this to be appalling.
Gina
Many readers are asking whether reduced or “preferential rents” offered to regulated tenants can be rescinded. The answer to that question will depend, in large part, on the wording which appears in your lease.
Prior to 2001, when a landlord gave a regulated tenant a break, the reduced rental rate served as the basis for future rent increases and could not be undone until the tenant vacated the unit. That policy changed as a result of an appellate decision and legislation which amended the Rent Stabilization Code.
Now, if you were to read a “Fact Sheet” issued by the New York State Division of Housing and Community Renewal, that state agency has taken the position that owners may rescind the reduction and charge the higher legal regulated rent upon a lease renewal. Appellate cases suggest that when the parties have “unequivocally and explicitly” intended that the preferential rate would last for the duration of the tenancy, or other time period, that agreement is fully enforceable and may not be unilaterally retracted by a landlord (or a successor purchaser).
To view a copy of the Housing and Community Renewal “Fact Sheet” on this particular topic, please use this link.
You’ll need to consult with a lawyer to assess whether there was a lawful basis to increase your rent in the manner you have described and whether you have a basis to challenge the owner’s conduct.
Our owner is making cosmetic improvements in our 1960s doorman building (upper eastside): new hall carpet, new hall lighting, upgrading the elevators (but not increasing their size or speed, just their appearance so there is no increased service). Can he claim a capital improvement surcharge for changes that are not functional but which bring the building more into line with other rental hi-rises in the area, presumably with an eye to keeping competitive?
This building of more than 450 units has but one service elevator. It is being “upgraded,” too…but, again, its size and speed won’t be increased. Is there basis for passing along that cost to the tenants?
He did get a capital improvement continuing assessment for putting in new windows. I don’t know why: I can’t see out of them any better or raise them more easily….
Dick
When a landlord makes a structural improvement to a building, there may be an entitlement to collect an increase, known as a “major capital improvement” or “MCI” increase, from each of the building’s regulated tenants.
These charges may not be collected until such time as a state agency, known as Housing and Community Renewal, authorizes the charge and sets the amount. (The MCI increase is allocated on a per-room basis and becomes part of the legal regulated rent for the purpose of computing future rent increases.)
Not all work qualifies. (For example, mere “cosmetic improvements” would be excluded from the pass-a-long calculation, but cosmetic work performed in conjunction with a major improvement would be considered by the agency.) Housing and Community Renewal has also promulgated a “useful life” schedule for frequently performed renovations — like the replacement of windows and air-conditioning systems. If an item’s “useful life” has not expired, an increase for the item may not be approved, particularly in the absence of some exigency such as an emergency replacement or repair.
Tenants are afforded an opportunity to object to the proposed MCI increase and may challenge the adequacy or propriety of the work performed. So, when you receive notification of the increase from Housing and Community Renewal, you (and the other tenants of your building) should consider filing appropriate objections to the work and/or costs. You may also wish to notify the DHCR of any problems you are experiencing with the work performed.
Don’t you think it should have been revealed in the intro that you are a landlord lawyer, not a tenant lawyer, and that your firm primarily represents landlords?
Ray Bailey
First and foremost, I am a lawyer.
And while my firm primarily represents landlords, we also represent tenants.
As a law school professor and an author of legal textbooks, I strive to interpret the law as objectively and impartially as humanly possible. (Once you’ve had an opportunity to review my responses to the many posts I received, I’m certain you’ll agree that the responses are fair and balanced.)
I would like to know what the definition of income is for the $175,000 income limit (2 years in a row) on rent stabilized apartments once the rent goes above $2000/month. Is it the Federal Adjusted Gross Income (for income taxes), or is it the New York State Adjusted Gross Income, or is it something else? Does it include the non-taxable portion of Social Security or the interest income from non-taxable investments such as triple-tax-free New York municipal bonds (which don’t appear in the Adjusted Gross Income)? Thank you for your help.
Irwin
Rent-regulated apartments may be deregulated when the legal rent reaches $2,000 (or more) and when the tenant’s annual household income — that is, the federal adjusted gross income as reported on New York State income tax returns — exceeds $175,000 for the two calendar years preceding the deregulation application’s filing.
The process is commonly known as “luxury deregulation” or “high-rent high-income decontrol.”
For additional information on the luxury deregulation process, here’s a link to a “Fact Sheet” released by Housing and Community Renewal.
Can you interpret this law for me:
Sec. 27-2107 Failure to register; penalties
a. A person who is required to file a statement of registration or an amendment of a statement of registration or any other statement required under this article and who fails to file as required may, whenever appropriate, be punished under the provisions of article three of subchapter five of this code, and such person shall be subject to a civil penalty of not less than two hundred and fifty dollars and not more than five hundred dollars, recoverable by the department by civil action in a court of appropriate jurisdiction.
An owner who is required to file a statement of registration under this article and who fails to file as required shall be denied the right to recover possession of the premises for nonpayment of rent during the period of noncompliance, and shall, in the discretion of the court, suffer a stay of proceedings to recover rents, during such period. In any action to recover possession under section seven hundred eleven of the real property actions and proceedings law, the owner shall set forth his or her registration number issued by the department, and shall allege that he or she has filed a statement of registration and shall annex a copy of the receipt of such registration to his or her petition.
Sam Frank
According to local law, all New York City “multiple dwellings” – generally defined as buildings which house three or more families living independently of each another – are required to be registered with the Property Registration Unit of the New York City Department of Housing Preservation and Development.
Failure to comply with this law can subject a landlord to the delineated array of fines and penalties which include the inability to start (or maintain) a nonpayment-of-rent case against any of the tenants living in that building.
(Until fairly recently, noncompliance with this law also impeded a landlord’s ability to start a holdover case. However, as a result of some appellate decisions, while a holdover may now be brought, no rent can be recovered.)
The city recently installed a fire hydrant on my block in Brooklyn. Consequently, my superintendant has to turn off the water in the morning, and turn it on in the evening. However, when the water is turned back on, it does not reach the top floors until early in the mornings,or not at all. After numerous complaints to my landlord, superintendent and 311, there has been no consistent resolution to this problem.
Are there circumtances that a tenant can sue a landlord for negligence, and be reimbursed for the inconveniences?
Cliff
In this particular instance, you wouldn’t sue your landlord for “negligence.” You would assert a claim that the owner has breached the “warranty of habitability” — Real Property Law Section 235-b — a New York State law which provides that rental apartments must be “fit for human habitation” and free of conditions “which would be dangerous, hazardous or detrimental to their life, health or safety.”
Courts have interpreted this law as conditioning a tenant’s obligation to pay rent upon a landlord’s compliance with its statutory obligation to maintain an apartment in “habitable condition.”
Believe it or not, the acts of third parties — like Con Edison or even the City of New York — will not excuse a landlord from its obligations to comply with this law.
Since the failure to provide running is a serious violation, you would arguably be entitled to a rent “abatement” or reduction for the period(s) of time you are without service. If you anticipate litigation, it is of utmost importance that you maintain a log and document the specifics of the outages (by date, time, and duration). That kind of record will help buttress your claim.
You are strongly encouraged to consult with a lawyer so that he or she can review all the options available to you.
I would like to adopt a dog, but there is a no-pet clause in my lease. However, I had a cat before moving into the apartment 5 years ago and had received permission from the landlord that the cat was O.K., as moving in was contingent on this specific issue. (This cat has lived here ever since.) Does his knowledge of the cat nullify the no-pet clause?
Andrew
According to our courts’ interpretation of the New York City “Pet Law,” the type of waiver you have described would likely be viewed as “pet specific” – meaning that the landlord’s permission for you to have “a cat” was limited to that particular animal and did not signify that you could have another animal of your choosing, including another feline. (With that said, a lawyer would need to review your lease and the precise nature of the permission you received to afford you a better assessment of your rights.)
By the way, while there is a bill pending in the New York City Council to change the law – and to allow tenants to have pets of their choosing once the no-pet clause is waived – that proposed modification has been stalled for the past several years.
I’m the rent-stabilized tenant of a two-bedroom apartment. I’m getting a roommate pursuant to RPL 226. We’re signing a roommate agreement to make sure we know where we stand, but I’m unsure how to keep the situation between us from becoming a landlord-tenant relationship. I have to take his rent payments, but I also have to live with him. What would you advise?
Gary
I don’t think you mean Real Property Law § 226-b – which is commonly known as the “Subletting Law.” (That law would require you to secure your landlord’s consent to the arrangement.) I believe you are referring to the “Roommate Law” – Real Property Law § 235-f.
Under § 235-f you are permitted to share occupancy of your apartment with others (subject to delineated restrictions) and need not get your landlord’s consent to the arrangement.
While you are certainly free to enter into a formal understanding with your “roomie” over apportioning costs and can attempt to characterize that agreement as creating something other than a “landlord-tenant” relationship, be forewarned that there are no assurances that a judge will agree with that characterization. The acceptance of rent will likely be viewed as creating a month-to-month tenancy which would require that you give that individual a 30-day Notice of Termination (and start a holdover case) should you opt to end the relationship and your “roomie” will not voluntarily vacate the premises.
Also, if you are a regulated tenant, do not collect more than a proportionate share of the rent from your co-occupant to avoid charges of “profiteering” – which could subject you to eviction.
If you’re uncertain how to structure this arrangement with your roommate, consult with a lawyer who can guide you through the process.
My roommate and I rent an apartment in Queens with no lease. My roommate has lived there for 3 years with no rent increase. I have lived there for one year on this same rate. The landlord now wants to increase the rent by 10% and in 6 months raise it another 10% (initially she was going to raise it by 20% all at once, but we complained). Without a lease, do we have any rights in regards to rent increases? Without a lease what rights do we have in general?
Ellen
Your rights depend on whether or not the unit is subject to some form of rent regulation.
Free-markets units are not currently subject to any limits or “caps” — which means a landlord is usually free to ask for as much (or as little) as the market will bear. And without the benefit of a written lease “locking in” your monthly rental rate for a set time frame, it is not surprising to see that your rent will be increasing over time. (You have a choice. If you believe the rate demanded is unfair or unreasonable, or is not consistent with the rent sought by other owners in the area, you should consider relocating to another building.)
If you live in a structure with six or more residential units, it is possible that you may be subject to rent stabilization and would therefore be entitled to an array of protections, including the right to a lease renewal of either a one- or two-year term. The owner would also be prohibited from bumping-up the legal regulated rent beyond certain percentage rates authorized by law. (From October 1, 2007, through and including September 30, 2008, a landlord of a NYC stabilized building may only increase the rent 3% if tenants opt for a one-year renewal, 5.75% if a two-year term is selected.)
To determine whether or not your unit is subject to rent regulation, contact Housing and Community Renewal.
Of course, consulting with a lawyer wouldn’t hurt either.
My mother and father separated, my father moved out of the apartment they shared, which is a rent stabilized apartment, the lease is in my fathers name, the current lease is set to expire, and a new lease has been offered under my fathers name, how does my mother go about claiming succession rights, and will it require, my father’s input?
Tony
Succession rights – the right to “inherit” or “takeover” a regulated tenant’s interests in an apartment – are subject to an array of statutory and regulatory requirements which your mother appears to have satisfied.
If she lived in the unit with you father from the tenancy’s inception, or from beginning of their relationship, or for a period of at least two years prior to your father’s departure from the unit, then the statutory threshold will have been met and she may remain as a rent-stabilized tenant in her own right.
You can expect the landlord to require some form of proof that your parents are legally separated and/or that your father is surrendering his interests in the premises to your mother, before the owner will issue a renewal lease solely in her name.
Should the owner resist, or prove uncooperative, you should contact Housing and Community Renewal and/or consult with a lawyer who can walk you through the process.
For an informative “Fact Sheet” promulgated by Housing and Community Renewal on “Succession,” please use this link.
My landlord drags his feet in getting me a new lease every year, and when he does, he wants back-rent for the difference in the amount the rent has raised since the end of the last lease. The lease is back-dated to the start of the end of the last lease, but am I obligated to pay the difference in back-rent or can I just state that the lease should start from the date I finally receive it?
It seems like tenants have no rights when it comes to non-stabilized apts. because if you fight anything the landlord can just not offer a new lease and then you are out on the street! Are landlords required to offer new leases?
Brooklyn
As you have anticipated, the owner of a “free market” or “unregulated” unit is not required to grant a tenant a renewal lease. Should one be offered, the terms are entirely subject to an owner’s whim. (In this particular instance, the request to back-date the increase doesn’t strike us as unfair or unreasonable, particularly since you “held over” and remained in possession beyond the expiration of your last lease’s term and, based on your prior interaction with the owner, expected there would a rent hike in the offing.)
Conversely, you are under no legal obligation to accept the offer, are free to negotiate a lower amount, and, may decline the renewal and relocate to another apartment should you be unable to reach an agreement that is acceptable to you.
Of course, our answer would have been completely different had you been a regulated tenant. For rent-stabilized tenants, for example, a lease renewal offer must be made to the tenant 90 to 150 days prior to then existing lease’s expiration. If that window is missed, the percentage increase (set by law) for either a one- or two-year lease would not begin until 90 days after the renewal was properly presented to the tenant for consideration. Your landlord would not be able to back-date the agreement nor retroactively recoup the increase. (In other words, the old rate would remain in place until such time as that 90-day period lapsed.)
Here’s wishing you luck with your negotiations!
I’ve read online that the law requires a building’s super to live either in the building or within 3 blocks. I’m unable to locate this law or any evidence outside of hearsay. What do you know about this?
Marcus
.
Take a look at the New York City Housing Maintenance Code § 27-2073. (To view a copy of the HMC, please use this link.)
By way of a quick overview, that particular law requires owners of buildings with nine or more units to provide janitorial services. If the owner resides in the building, he or she can perform the services. Otherwise, a janitor or super must be hired.
According to the Housing Maintenance Code, it is not required that the super actually live in the building. It is legally acceptable if the janitor resides within a block or no more than 200 feet away, whichever is greater.
While the law also permits owners to hire an outside company to perform the services, if that option is selected, the company must be on-call 24/7.
How did you get involved in landlord-tenant law? I am a litigation associate at a big firm and would like to know what your career trajectory has been.
Anting
Now that’s a loaded question.
To be quite frank, it was a fluke.
Over 20 years ago, I was associated with an entertainment law firm which merged with a group of real-estate litigators … and it’s been downhill ever since.
But seriously, it’s a long story and one best left for another day. You’re certainly free to give me a holler offline (via e-mail or telephone) and I’d be happy to share all the sordid details with you.
I moved out of my apartment for personal reasons a year before the lease ends. The landlord wants be to find my own sublettor and pay the rent in the meantime even though I am not living there. Do I really need to pay the rent for the next year or are there other remedies? I don’t have any money and can’t afford to pay the rent.
Jennifer
Prematurely vacating an apartment (prior to your lease’s expiration) is fraught with peril.
Depending on where you live in the state, and in which court your case is heard, a landlord might be required to assist you with reletting the space. But, generally speaking, here in the New York City area, a landlord is usually under no legal obligation to release you from the lease or help you find a replacement tenant. The liability for the rent and responsibility for the unit remain yours.
With that said, if there were conditions that made all or part of the apartment unsafe, unusable or uninhabitable, and your departure was triggered by the unacceptability of those conditions, you might have a stronger defense to the landlord’s demands.
You would be well advised to meet with a lawyer to further discuss your options.
I live in a rent-stabilized one bedroom apartment in a building with over 100 rental units. I believe that the apartment has become infested with bed bugs. My basis for this belief is the bites all over my body in a pattern that is typical of bed bugs. My landlord refuses to pay for the eradication of the bugs on the grounds that: 1) a visual inspection has shown no evidence of bed bugs; 2) I “must have introduced them into the apartment myself;” and 3) he is not obligated to pay. I have never knowingly been exposed to bed bugs. Furthermore, there is at least one other bed-bug-infested unit in my building. It is my understanding that the housing code requires that the landlord pay for bed bug eradication in rent stabilized units. Am I correct?
Alfie
I am unaware of any “housing code” provision which requires a landlord to pay for the elimination of a bed-bug infestation.
Recent cases have characterized the condition as a possible breach of the “warranty of habitability” — Real Property Law § 235-b — a state law which mandates that all residential rental units be “fit for human habitation” and free of conditions “which would be dangerous, hazardous or detrimental to their life, health or safety.”
While bed bugs could trigger a violation of that law and may entitle the tenant, among other things, to a rent reduction or “abatement” during the time the infestation remains unabated, the problem in these cases is one of proof.
The “warranty of habitability” specifically provides that an owner is not legally obligated to correct conditions caused by the tenant or those persons who are under the tenant’s direction or control – like roommates or family members.
If the condition is truly a “building-wide” problem you would certainly have a stronger case. If the infestation is limited in scope, you will likely need some sort of expert analysis or other support to buttress your claim that you (and/or others who reside with you) did not introduce these pests to the unit and that this is exclusively a building-related condition.
Despite a no pet clause in the lease for my rent stabilized apt, I have kept an 8lb chihuahua openly since 1/7/2006. My building was sold to AJ Clarke realty in June of 2007 and they are now evicting me. I have paperwork & photos dating back to nov 2006. Do I have a case? What is the success rate in this type of holdover case?
Jenay
The New York City Pet Law – NYC Administrative Code § 27-2009.1(b) — provides that a landlord must file a case based on a violation of a “no pets” clause within 90 days of the landlord’s discovery of the violation or the objection to that animal’s existence is “waived.” (In other words, the animal gets to stay and the tenant may not be evicted on the basis that he or she is harboring a pet in violation of the lease.)
As far as this law is concerned, a new owner steps into a predecessor’s shoes and the clock would not begin anew. So, if the objection was “waived” by a prior owner’s inaction that waiver would continue in full force and effect (at least as far as that particular animal is concerned).
While success ratios are extremely difficult (if not impossible) to predict, it appears that you have a strong argument in favor of keeping the pet and avoiding eviction. (However, if you have not already done so, you would be well advised to speak to a lawyer who can review the evidence and better assess your options.)
Give the pooch a hug for me. Onward!
Comments are no longer being accepted.