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January 2011 Archives

If You Say It's Yours, You Better Be Able to Prove It

As a practical matter, in most divorce actions there is a presumption favoring the classification of money and assets as martial property. That means the court tends to look at whatever you have as being owned by both you and your spouse. Problems arise when there are assets one spouse owned prior to marrying, or acquired without any contribution from the other.

Filing a "rent-impairing violations" claim against your negligent landlord

When it can be shown that a landlord has received notice of certain defective conditions in an apartment or the building's common areas for a six-month period, and did nothing to correct them, there is a tenant defense against demands for rent. Several elements are necessary to make this defense work. First, there is a list of "rent-impairing violations" published by the Department of Housing Preservation and Development. One or more of these must be at issue in your case. Mostly these are serious defects involving matters such as fire safety, proper ingress and egress, heat and hot water, sewage disposal, etc. Secondly, you must still pay the rent to the Court, or make suitable escrow arrangements that are acceptable to the judge. If the Court finds that the landlord had notice of the violations, but didn't fix them for over six months, you get your money back and won't owe any rent until repairs are made. This is a good defense to use in conjunction with a rent strike, if building common areas are involved, or enough tenants are affected by the violations. 

Take Pictures if You Want the Best Chance of Getting Your Security Deposit Back

Take photos of all the rooms and appliances in your apartment. If you eventually leave, the landlord may claim to be entitled to all or part of your security deposit, due to the condition the unit was left in. With pictures, you'll have the evidence necessary to substantiate a defense that any damage is no more than regular "wear and tear."

Do nothing, get nothing.

Spouses who have done little or nothing to obtain or contribute to the value of an asset often fight bitterly for it in a divorce. For example, let's say Mom or Dad left you a house after passing on, and you've lived there with your spouse. Unfortunately, over the years, your husband or wife did nothing to maintain or to increase the value of the property. You tended the garden. You built the new patio, paid for the pool or Jacuzzi, and made other improvements with pre-marriage money or an inheritance. If you can prove this in Court with sufficient evidence, your spouse may be out of luck in terms of getting a share of it. To a varying extent this can apply to any asset, so don't sell yourself short if the argument can be raised on your behalf. Give your lawyer the details, and he or she will determine if and how they can best be presented to the judge. 

Special Protection Against Luxury Decontrol

If you earn more than $175,000 a year for two years in a row while residing in a rent-stabilized unit, and the rent is over $2000 a month, your apartment can be destabilized. However, if your landlord is receiving tax abatements from New York City under the J51, 421-a or 421-g programs, the luxury decontrol provisions do not apply. If you are facing potential decontrol of your home, it's a good idea to check into your building's tax abatement status. Some information is available online, but since the stakes are high when you can lose your rent-regulated rights, it's a good idea to have an experienced Landlord Tenant attorney research the matter and assist you. You may also have other tenant protections as a result of the landlord's receipt of these government benefits. 

If your divorce is uncontested, it makes a difference where you file...

Each county has its own rules and preferences, and some are easier to navigate than others. If you want an expeditious result, consideration of where to file your divorce needs to be part of the strategy you talk about with your lawyer. New York County offers some advantages because its requirements are clearly set forth and enforced, within a well-organized structure. So if you want the fastest divorce you can reasonably hope to obtain, filing in New York County may be the best choice. However, regardless of how quickly your papers are processed, it's not reasonable to expect the process to be fully complete in less than three months. In some cases, it can take five or six months to finalize the whole matter. 

Heat and Hot Water Violations Can Result in Rent Adjustments of 50%

If you don't have heat or hot water, the first thing you should do is to call the NYC Emergency Housing Complaints line to file a complaint and request an inspection. You should keep a log of specific dates and times when heat and hot water were not available or adequate. Go to your local hardware store and get a new thermometer that's certified for accuracy. Use it to record the temperature. Save the packaging as proof in Court of valid readings. Case law has established that you may be entitled to a rent abatement, which is a reduction to compensate for lack of services, of as much as 50% of your monthly rental rate. The key to success with this type of claim is detailed documentation. You have to give your Tenants' lawyer ammunition to work with. There is no guarantee of results with these claims - it is largely at the discretion of the Housing Court judge. However, if neighbors participate in supplying evidence of violations, the claim benefits from collective strength and credibility. If enough tenants are adversely affected, you might want to consider a building rent strike.

If There's a Stink, Stench or Smell, the Court Can Compel

If you are subject to foul odors in your apartment, you may be entitled to a substantial rent decrease to compensate for the defect, until it's corrected. Legally, this adjustment is referred to as a rent abatement.For example, in one case on record, a 50% abatement was awarded due the presence of noxious fumes from a dry cleaning establishment in the building. Similar claims could be made for issues involving leaking gas pipes, or a stench from sewage plumbing defects.

A Cohabitation Agreement Gives Same-Sex Couples Significant Benefits

Even if you aren't legally married, New York law permits you to have a cohabitation agreement with your partner. This document sets forth critical legal parameters of your relationship in writing, defining various rights and responsibilities you have toward each other. It can help to protect your interests if the relationship ends: you may avoid leaving with nothing and possibly having your life end up in a financial shambles. The agreement can address how property is to be distributed, continuation of financial support, medical and insurance issues, debt repayment, care of children, and inheritances. These are the most significant areas covered, among others. An enforceable cohabitation agreement also reduces potential disputes, because mutual obligations have been spelled out and agreed to in advance. It's an option that can provide a gay or lesbian individual with safeguards similar to those conferred by a prenuptial agreement, although not quite as comprehensive. 

Anticipate your needs, or you may have to pay to your lease's last day

A lease sometimes includes additional services beyond the basic rental of the premises, such as a parking space in the building garage, or access to a health club. However, you may have to pay for them throughout the entire term, even if you discontinue use. An important element is whether the service is listed in your lease with a specific charge, separate from the apartment rental rate. In an unregulated lease, you can then escape extra charges at renewal. However, if it's a two-year lease, and at the end of the first year you decide you don't want the additional service, you may be stuck for another year. With a rent-stabilized lease, your landlord may try to claim that forgoing the extra charges disrupts your regulated status. So while it may be a good idea to include some ancillary services in a lease, be careful what you agree to.

Domestic violence isn't just physical...

Under the law, just because you're not being physically assaulted doesn't mean that you aren't a victim of domestic violence. Legally, domestic violence has a broad definition. It incorporates threats, emotional degradation, withholding money and economic support, and other types of abuse. Intimidating behavior includes not only physical assault, but also threats to commit suicide, to report a spouse to a government agency such as the IRS or immigration authorities, to harm pets, etc. Psychological aspects of domestic violence extend to various forms of public humiliation, name-calling and an assortment of damaging mind-games. All of these descriptions are just a partial list, to give you a few examples. If you are subject to any treatment of this sort, give a detailed report to your lawyer. He or she can then determine how best to use the information to keep you safe and protect your legal interests. Do not be ashamed to discuss any facet of the problem with your attorney. The impulse to maintain secrecy is frequently the most insidious part of domestic violence. Men are frequently victims of psychological and sometimes even physical battery, sustaining injuries similar to those women do. 

An Oral Lease May Be Valid

In New York State, an oral lease is valid for terms of under a year. So if you had a verbal agreement with your landlord for a short-term lease, or its renewal, as long as the term doesn't exceed one year it may be binding. If the landlord tries to evict you before then, you have a right of occupancy up to the end of the agreed-upon term. The question is how to prove it to a judge. This is why it's best to have agreements in writing. However, depending on the facts, it's possible to argue that your tenancy should survive a premature eviction. If you win in Court, the suit against you would then have to be dismissed. It works both ways, though - if you agreed to stay, and want to leave prior to the term you verbally agreed to, you may be liable for the additional rent. 

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