Don’t Depend On Court Personnel For Protection
Law assistants to housing court judges help people who are “unrepresented” (who don’t have lawyers) argue their rights. But sometimes (on any given day) they may be overworked, rushed, and impatient, just when you need their help. They work for the court, so you can’t hire them (to be your lawyer; that’s not their job). Coming to court and expecting them to fight for you puts your rights at risk.
For example, most judges ask their law assistants to find out if repairs are needed in apartments, and if so, to require landlords to make those repairs in any agreement. And to be sure petitioners comply with legal (“due process”) requirements for notifying respondents of the court proceeding, some judges ask assistants to check how papers were delivered.
But these things take time; omitting such questions is quicker. When dealing with interruptions and inquiries about the full spectrum of issues, law assistants don’t always get around to the questions judges ask them to look into. Or if they do, in rushing through (as at times they must), they might miss or mistake some of their notes in the Court file.
Similarly, in the clerk’s office (where tenants answer court papers) very few clerks take the time to explain rights and defenses when asking how tenants “answer” petitions. Most will tell you they “can’t give legal advice” (“coach” what to say in papers). And few tenants realize that giving the clerk their answer is exactly the right time to complain (especially for repairs).
Worse still, when someone knows what they’re talking about and well-explains the problems they’re having (like how they didn’t receive the papers properly, or exactly what needs repair), clerk may not record everything they’re told in filling out documents.
Frustrated tenants have retained McAdams Law after court clerks failed to write down how papers were delivered or the complaints about apartments on the pre-printed Court forms. Our Firm is usually able to amend such papers, but doing so costs unnecessary attorney fees. Ideally, tenants should not have to hire a lawyer to insure court-acceptance of documents correctly and completely describing their complaints, but this is reality. It happens. Even in a court of law, things don’t always go as they’re supposed to.
In the courthouse, even the Pre-Printed Court-Forms (a big improvement over what went before) leave out many details that are vital to preserving your rights. When the form doesn’t ask something vital, you are more likely to overlook it. Here’s an example. The Answer Form asks if the papers were served correctly according to how they are supposed to be served, but it doesn’t say what is “correct service.” So it’s easy to be trapped by the form’s lack of explicit information because (technically) you must specifically say how papers were not properly delivered to get a hearing on the question. They almost induce omitting necessary information from answers.
Results are much better when respondents go online and use the DIY Program. (e.g., this one: http://www.nycourts.gov/COURTS/nyc/housing/int_nonpayment.shtml.)
It’s best to get a genuine tenants attorney to defend you. The sad fact in Housing Court is that improper things happen, and when you represent yourself, you can be a victim.
Get Agreements In Writing That Comply With Current Laws
The deal you make with your landlord today may be attacked by a new landlord tomorrow (if the building changes hands). Most leases have a clause saying they can only be changed in writing. If a deal is unenforceable and a new owner takes over your building, he or she may use this fact to advance attempts to take away your apartment.
For a Brooklyn holdover, another firm consulted McAdams Law after a tenant made a deal with a landlord to pay the past due rent another tenant owed to get a rent-stabilized apartment. (Under rent stabilization, paying money just to get a lease is called paying “key money.” Charging key money is overcharging.) When a new owner purchased the building, it tried to evict the new tenant because the previous tenant’s name was still on the lease. The tenant had to go to court to defend his right to stay. We won, but now the tenant is black-listed. Had it been in writing the new owner could not have used these grounds to try to evict the tenant.
Before you agree to anything in court (beyond what is already specified in your lease) check with a Tenants’ attorney to see if it’s legal, enforceable, and actually protects your rights.
Hazardous conditions in apartments that impact on the well-being of occupants are subject to emergency measures from Housing Court, the Department of Housing, Preservation, and Development (“HPD”), and the Department of Buildings (“DOB”). For example, let’s say the landlord is supposed to remove lead paint, and you vacate the apartment over a weekend to safely allow work. If, on you return, the repair is not proper and complete, you’re definitely exposed to lead-paint-dust-injury. Should this happen, immediately (1) call 311 to report it to HPD and (2) seek relief in Housing Court (BOTH)! Maybe the landlord will give you alternate housing, such as a vacant apartment in the building or to a hotel accommodation, until the defective conditions are corrected. (For cases tenants bring against their landlords about conditions, clerks at Housing Court do assist you in filing the necessary papers.)
If Your Lease Is Not Rent Stabilized, Negotiate An Option To Renew It
If you live in an unregulated apartment, you do not have the protections conferred by rent stabilization or rent control (which require landlords to extend tenancies). Without rent regulations, there is almost no limit on rent increases landlords may charge as a condition of extending a lease when leases expire. A way to protect yourself from this is by negotiating an option to renew at a pre-set rate on expiration, whether you’re in an unregulated unit now, or are renting another apartment for the first time.
In a difficult economy, when the market favors renters, landlords are more likely to offer concessions. You’ll need to have specific language included in your lease, detailing the renewal option and rate. Whenever adding legal provisions to your lease, it’s safest to consult a Tenants’ attorney to avoid loopholes that could allow your landlord to escape honoring your option. (Court battles might wipe out any savings you would have gained and expose you to blacklisting; landlords know this.)
Attorneys’ Fees Lease-Clauses Are Reciprocal
Most form-leases require tenants to pay the landlord’s legal fees on losing lawsuits without saying tenants have the same rights. However, if you successfully defend the suit, or start your own against the landlord and win, the clause favoring the landlord for attorneys fees, by law, gives you the same claim to reimbursement for your legal costs. New York statutory law provides residential tenants with reciprocal rights to attorney’s fees under such clauses.
This helps tenants who are reluctant to challenge a landlord because of the cost of bringing suit. And if a condition in your building affects several tenants, banding together to hire a Tenants’ attorney is an effective way to reduce the individual cost of representation, especially if your lawyer advises that it’s possible to recoup all or part of the expense of retaining a law firm.
Getting Rent Reductions
Tenants often suffer needlessly, when instead they can invoke powerful legal protections against their landlords’ abuse or negligence. If you’ve had to live with defective conditions or inadequate services you may be entitled to reduce the rent to compensate you. That’s called a rent abatement, and depending on the seriousness of the problems, it may be substantial. Here’s a common example of how an abatement can be awarded to you…
Let’s say you complained about needing repairs in your apartment a year ago, and the landlord has done nothing about it. The repairs should reasonably have been completed within two months after you first notified the building management. After a tenant notifies the landlord of conditions, the landlord’s failure to correct them in a reasonable period means the tenant is entitled to a rent abatement of the difference between the rental value of the apartment in good condition and the rental value of the apartment in the defective condition. A problem is that few landlords will agree to this without a court deciding it. That requires a law suit, however, which black lists the tenant if it is done in housing court where such disputes belong.
And frequently, when tenants complain for repairs or lacking essential services, they may get a short-term remedy, but then the landlord chooses not to renew the lease. So usually the best course of action is to negotiate an acceptable resolution for both parties without alienating the landlord. Since people are rarely as effective in bargaining for themselves as an experienced lawyer would be, it’s best to consult a Tenants’ attorney about your rights and alternative approaches.
If You Don’t Know Your Rights, Your Tenancy Is At The Landlord’s Mercy
New York State Laws protect tenants’ rights. In New York City, rent regulations apartments are far more protective, especially to landlord-abuse and exploitation, principally because the landlord must renew your lease. But these regulatory systems are not self-enforcing. Tenants need to monitor what their landlords do or don’t do, and complain when they violate legal protections.
Attorney Jeffrey McAdams has a proven track record of success in helping tenants with unregulated leases to resolve their difficulties with landlords. Call 212-257-9425 weekdays between 12:00 and 2:00 for a, brief initial telephone evaluation to learn more about your rights.
Perils Of The Blacklist For Unregulated Tenants
Housing Court sells information that identifies litigating parties to tenant screening agencies. After going to Housing Court with your landlord, the next time you attempt to rent an apartment you’ll be flagged as a litigant. This “blacklisting” makes it far less likely your rental application will be approved. Being on the blacklist puts high hurdles in the way of renting a home or being approved by a co-op board to purchase shares.
Unfortunately, if you live in a free market apartment, you’re more vulnerable to the effects of the blacklist than a rent-stabilized tenant with a right to renew the lease would be. That’s because even if the regulated tenant has to go to court, the landlord is obligated to renew the lease. Many tenants who live in regulated units have sustained numerous conflicts with their landlords, but escape the impact of the blacklist simply because they can continue to live in their current homes and don’t have to move. As an unregulated tenant, you don’t have that advantage.
One way around the blacklisting problem when you have a conflict with your landlord is to pre-empt being sued in Housing Court. This can be accomplished by litigating your cases in New York State Supreme Court. Supreme Court does not sell names or identify litigants to tenant-background screening-agencies.