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March 2011 Archives

If You Lose Your Apartment in a "Personal Use" Suit, Keep Tabs on the Landlord

If your landlord manages to break your rent-stabilized tenancy by claiming the apartment for his or her personal use, or the use of a family member, the law requires that "use" to last for at least three years. If a Court awards the apartment to the landlord, and it isn't occupied for personal use for at least that length of time, penalties can be imposed on the landlord. Note that if you make a deal with the landlord and agree to leave in exchange for certain benefits, you may forfeit the opportunity to bring this suit within the three-year window. The landlord must obtain a judgment against you without your consent, forcing you to leave, in order to for you to retain that right. So if you are thrown out, stay friendly with the neighbors or doormen, and check in with them once in a while to see what's going on.

If Your Ex is Living Large, Ask Questions

Generally, after divorces are signed and sealed, courts are reluctant to disturb decisions and agreements. However, if the maintenance or child support you're receiving is inadequate, and you notice that your former husband or wife has a new, extravagant lifestyle, it's worth looking into. An unexpected improvement in manner of living may be an indication of misrepresentation on prior income and assets. If that's true, you could sue for "upward modification" of the amounts you receive. If there's a dramatic increase in income, or he or she benefits from a monetary windfall, there may be additional fact patterns in which an upward modification suit can succeed. It's also important to realize that this principle can work against you. For example, if after divorcing, your income rises considerably, or your ex-spouse suffers a devastating financial setback, a case can be made for downward modification of what is paid to you. In either scenario, it's a good idea to review the facts with an experienced divorce attorney. 

Another Way the Landlord May Try to Take Over Your Apartment

Individual landlords have a right not to renew rent-stabilized leases if they can prove their intentions to employ the units for "personal use." Legally, personal use includes property owners or members of their immediate families. A variation on this theme is the landlord who claims to want a unit for business use, such as turning your apartment into a management office. In this instance, the landlord must persuade the Division of Housing and Community Renewal ("DHCR") to authorize eviction of a residential tenant for business purposes. Once again, there is a legal obligation to supply evidence to support that position, but it can be a legitimate threat to your lease. Fortunately, it's not quite a cut and dried issue. The landlord's proof can be refuted. If you find yourself in this situation, it's not advisable to attempt to represent yourself, as handling various aspects of these cases can be very complex. Note that if your building or apartment is owned by a corporation or partnership, the landlord cannot seize the unit for personal use.

If It's Not in Writing, It's Not Binding

He said, she said. Divorce cases have a lot of bickering back and forth. But when all is said and done, usually it's what's written on paper and signed by both sides that counts. During litigation, the content of settlement negotiations cannot be entered as evidence, so don't waste time and energy arguing with your spouse over whatever was promised or discussed. Let your attorney handle the bargaining and put everything that's agreed to in a contractual document. There are exceptions, but the general rule is: if it's not in the final written agreement, it's not enforceable. On the other hand, you can challenge contracts that are fraudulent, made under duress, or are overreaching, unconscionable and unjust. Whenever you have an issue with your spouse's obligations and responsibilities, call your attorney first to check what the papers say, or to have necessary elements added to them before they're signed. 

What a "Yellowstone Injunction" is and How It Protects You from Landlord Legal Action

Let's say your landlord has gone to court and sued you to force correction of a condition in your apartment you're responsible for. For example, the lease requires 80% of the floor to be carpeted and you don't have enough covered. Now you've gotten a set of papers saying you have 10 days to correct the condition. The problem is that you'd need more than 10 days to fix things, and in fact, it may not even be necessary. In this scenario, if you have allergies that make carpeting intolerable, the landlord may be required to give you a "reasonable accommodation" for medical reasons. One approach is for your Tenants' lawyer to petition the court for a "Yellowstone injunction," which has the effect of halting the 10-day cure period, so the judge can decide if the adjustment is warranted. Obtaining a Yellowstone injunction can be an expensive proposition, and generally is only justified in high stakes situations. However, it is an effective strategy to buy time and may also defeat an attempted eviction. Yellowstone injunctions are used more often for commercial tenants, but can also be applied to residential actions. 

Three Elements to Negotiate If You Lose Your Tenancy

Not every Landlord Tenant dispute has a positive outcome for the tenant. Landlords frequently prevail in Housing Court. For example, if you just can't come up with the money for back rent due, or the current rent, then no matter what steps you or your lawyer may take, sooner or later you will have to relinquish your rights to occupy the apartment.

Emancipation, Deception and Child Support

New York State laws require parents to pay for a child's support to the age of 21, or until 'emancipation.' Your child is emancipated if he or she gets married, joins the military, or leaves home against your wishes with the intent of escaping supervision. A key element is whether the child is beyond the influence of parental control. While a judge can rule that your son or daughter is emancipated without being economically self-sufficient, his or her earnings will be strongly considered. Sometimes the parent with whom the child lived tries to hide the fact that he or she has moved out, because that can legally stop child support payments. Attempting to hide the truth is not a good idea for many reasons, as almost invariably it will come out. When it is revealed to the court, it can devastate the case of the custodial parent. Conversely, if you are the one paying child support and you are not in frequent direct contact with your kid, you'll want to keep abreast of living arrangements. 

Scrutinize Process Server Records to Protect Yourself Against "Sewer Service"

Landlord Tenant law has strict requirements for how papers are to be served. Process servers are sometimes sloppy in adhering to the rules - this is called "sewer service." One effective method of having a case dismissed in an eviction proceeding is for your attorney to examine the process server's records, and then see if they are internally consistent. For example, the process server swears to a particular time that the papers were served on you, say at 9:00 in the evening. If records show that the previous set of papers he served on another litigant was at 8:45 that same night, but the prior location was 10 miles away, it's clear that the time he claims your papers were served can't be accurate. So his credibility is undermined with the court, which can be enough to get the landlord's case is thrown out. This buys you more time, and can result in other legal advantages. But it's probably not something you could easily do yourself, as a "pro se" litigant handling your own defense, since detailed legal research and cross-examination of the process server may be involved. 

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