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Tenant Organizing Manual

Strategies to Improve the Conditions of your Building

In the previous chapter, we discussed how to organize your neighbors to address the building-wide problems as a group and how to maintain a unified and cohesive association. Once you have decided how you will be working together, the next stage is to plan the specific actions your group will take and in what sequence. In this chapter, LHNA outlines a progressive course of action from finding out who owns your building, to going on rent-strike, how far your association will need to go will depend on your owner's response to your group's demands as well as how far the tenants in your association are willing to go. Please note that some of the steps can be conducted concurrently with others that are outlined below.

Depending on the severity of the building's problems, your association may decide to begin with aggressive actions. Keep in mind that regardless of the strategies you choose, documentation of building conditions and proof that the owner knows about the problems will strengthen your case in court and/or at administrative hearings.

Whatever course of action your association decides to take, make sure that you are clear about what it is that you want to accomplish and as importantly, that you have the resources needed to achieve these goals.

Step One: Find Out Who Owns The Building

To effectively address building problems, tenants should deal directly with the building owner. If you do not know who owns your building there are two places to find out:

  1. Building owners must register with the Registration Division of the Department of Rent and Housing Maintenance. Tenants must go, in person, and ask to see the Multiple Dwelling Registration card for their building at the:

    Office of Code Enforcement
    39 Broadway, 9th floor
    NYC, NY 10009

  2. Or, you can ask to see a copy of the deed for the building at the:

    CITY REGISTER
    31 Chambers Street
    NYC, NY 10007

Step Two: Put Your Complaints In Writing

Write the owner, by petition or in letter form, documenting the conditions of the building. Send it by certified mail, return receipt requested. Keep a copy for the association's files.

Whatever other steps your group decides to take, this step is critical so that the owner cannot say s/he did not "know" of the problems, and because all authorities you may go to in future actions will request proof that YOU notified the owner of the conditions.

Be specific in documenting the conditions of the building. In cases of lack of service, i.e. heat/hot water, include the tenants' records of the dates, time, etc. when your building lacked such services and how long such conditions have existed. Include what tenants have done in the past to notify the owner (or super or managing agent) and what the owner's response was.

Let the owner know what you want done and by when. Give the name and telephone number of one or two tenant representatives that the owner can contact. If your group writes the owner by letter rather than petition, you can identify the signers of the letter the group's representatives, such as "For the Tenants' Association."

Send copies of your letter/petition to community agencies in the neighborhood, i.e. LHNA, and to elected officials. Make sure to "cc" such organizations at the bottom of your letter.

Step Three: Negotiate With Your Owner

In negotiations, disputing parties seek to reach a mutually satisfactory and voluntary settlement to their differences. Through face-to-face negotiations, the tenants' association meets directly with the owner, sometimes for the first time, presenting its demands and jointly developing a timetable for repairs.

Negotiating with a building owner shows that the group, in good faith, gave the owner the opportunity to respond to the issues at hand. If the association needs to take more aggressive actions in the future, records of the negotiation attempts can provide effective documentation in housing court or at administrative hearings.

Decide when and where to meet the owner

Select two or three dates and times from which the owner can choose a convenient time to meet. Try to select times that will enable you and the owner to meet without interruptions, times that are not likely to be followed by other appointments so that no one is looking at their watches during the session.

Decide where you wish to meet with the owner.

Some owners may not want to meet in the building, and some tenants may not want to meet at the owner's office as neither may want to give the "psychological edge" to the other. Although you can certainly request that the meeting be held in the building, especially if you wish to graphically show the owner the conditions of the building, it may be helpful to have alternative "neutral" locations in mind. (Many tenant groups hold their negotiation sessions at LHNA)

Request a face-to-face meeting with your owner

In the association's first letter to the owner or in a subsequent letter, write the owner (by certified mail, return receipt requested) asking for a meeting to discuss and resolve the building's problems. List the building's problems, indicating that these are the "agenda" items.

State the dates, times and location at which the association would be available for such a meeting. Indicate in your letter by when you are asking the owner to respond to your request and to whom. You can include that if the designated person does not hear from the owner by "x" date, this person will be calling him/her directly.

Clearly state that this meeting is being requested by the TENANTS' ASSOCIATION and not individual tenants and that you wish to meet directly with the owner, not a representative. (This is so you can meet with the person who has the power to make decisions, and not with someone whose only authority may be message-taker)

The letter can be signed by as many tenants as possible, one or more representatives, "Members of the Steering Committee," "For the Tenants' Association," etc.

Sometimes, owners try to initiate "private" negotiations with individual tenants and are reluctant to acknowledge the group. Respond to such approaches with the reminder that it is the tenants' association requesting the meeting, not individuals.

Owner's response to the meeting request

There are three likely responses

1. Owner refuses to meet

See if you can get the refusal in writing to use as documentation in subsequent strategies. If this is not possible, the association can write a follow-up letter to the owner indicating that as a result his/her lack of response to your meeting request the association must now take further action. (Move on to STEP FOUR: REGISTERING OFFICIAL COMPLAINTS)

2. Owner agrees to meet, but at a different location and/or time

If the owner agrees to meet but at a different date and/or time, or states that he/she will only meet in his/her office, the association should decide whether to agree, or, refuse to change the location/date/time, or, whether you should question the owner as to why he/she has suggested these changes.

If the requested changes are for legitimate reasons, your association can decide accordingly. If it seems to be a power-play on the part of the owner, your association should decide how important it is to the association's goals to push him/her to meet when and where the group has decided. Are your actions a "power-play" also, or is there sound reason to hold your ground?, Keep in mind that if the association turns down negotiations because of place/time, etc., in your future actions (i.e. hearings, court, etc.) the owner may say that s/he wanted to meet, but YOU refused. Make sure you have sound reason to defend your strategy.

3. Owner agrees to meet, as requested in your letter

Move on to planning the negotiation session.

Plan the Negotiation Session

In order to get a satisfactory agreement, you must know what you want, what you will agree to, and how you expect get what you need. At a full meeting of the tenants' association, select who will represent the group as your negotiating "team"

As it is not necessary (or frequently possible) for all of the tenants in the building to attend the negotiation session the association needs to select a team of representatives who will speak on their behalf. One or two people should be designated spokesperson, one should be minutes taker, and others who attend will be observers.

Those selected for the team should be people who are able to focus on the issues, who are able to keep calm and speak on behalf of the association. All efforts should be made to avoid uncontrolled anger.

The people selected for the negotiating team should have the sanction and the trust of the full membership of the association, especially if your group is of a size that would make it prohibitive for all to attend the negotiation session. It should also be clear that the team will not agree to anything at the session that was not previously agreed to by all the tenants.

Review and list your complaints

Your complaints are the building-wide problems faced by your building. These complaints can be the crisis that brought your building together as a tenants' association (i.e. lack of heat and hot water) as well as the other building-wide issues identified (security, lease problems, general cleanliness, roaches/rodents, etc.). Get a consensus from the tenants that these are the problems to be presented.

Prioritize your complaints

List the most serious and most important problems, and then discuss the order to present them at the meeting. Decide whether you want to start with the "easiest" working your way towards the most difficult, or vice versa. No matter how you decide to list these issues, it is critical that both the negotiating team and the full tenants' association agree to and understand the priorities.

Compile your documentation

Compile information from the tenants to document these complaints to the owner: i.e. dates/times of no heat/hot water; crime problems related to building security, a copy of the Crime Prevention Officer's report defining building-wide security needs, list of apartments in which roaches/rodents have been seen, photographs of garbage in the building, anecdotal information of how lack of "x" service has effected some tenants (i.e. elderly, families with small children, etc.).

Define your demands

Discuss what you are asking the owner to do and by when. You should be able to clearly let the owner know what s/he is being asked to do.

Is the owner required to do all you are demanding?

There are certain things for which the owner is legally responsible, while for others s/he is not. For example, the owner is required to provide heat and hot water, and therefore, a demand that the boiler be repaired should be met. However if the tenants also decide to demand a rent abatement for the period during which there were no services, the owner is not legally bound to agree.

Even in court actions, judges may not order rent abatements to tenants; and if they do, the abatement may not be for the full amount of rent during the period of no service. However, keep in mind that this is a negotiation session, and you certainly can ask for a full rent abatement which can then be "negotiated."

Decide whether or not any of your demands can be compromised

Discuss with the tenants the "bottom line" for each of your demands. What is the LEAST the group will settle for on each demand? You've decided what it is that you want; now, decide what it is that you need. Since the team will be speaking for the full association, they need to know if there is a compromise point for the demands. For example, if building maintenance and cleanliness are problems, your "opening" demand may be a live-in super; whereas your "bottom line" may be a super living nearby who is accessible to the tenants.

At the same time, decide with the tenants which demands cannot be compromised.

Write down your demands

After completing the above tasks, put your demands in writing, not because you need to give them to the owner in writing, but because everyone in the group should agree to them and understand what they are.

Discuss how to deal with the owner's response to your demands

Get a general consensus from the group as to how the team should respond if the owner refuses to meet some or all of the demands. You do not have to make your final decisions at this time; however, depending on how the negotiations go, the team may have to determine whether they will be able to get the owner to change his/her mind by making a "threat."

For example, at the negotiations, the owner has refused to do "x," which is one of the demands that the group decided not to compromise Should the team "threaten" a rent strike: NO, not unless the team knows that the tenants will be willing to carry it out. if you make a threat that is not carried out, you won't be believed next time no matter what power you have.

Use of language

In negotiations, the words you use may make or break you. Using inflammatory or sarcastic terms for the sake of using them may serve little purpose. Keep in mind that you are trying to get the owner to say, "yes" to your demands. Think about how you can best accomplish this. LHNA suggests that you begin your negotiations with the assumption that the owner wants to come to a settlement, after all, s/he has agreed to meet with you.

Should your meeting take a different turn, then decide accordingly as to your actions at the session, as well as the future strategies of the tenants' association. Some "key" phrases that you can consider using are as follows:

    "You seem to be an intelligent person who is concerned about your property. We, too are concerned about our homes and that is why...."

    "Let me ask you, do you think our request for.......is unreasonable?"

    "It's in your best interest, as well as ours for you to......."

    "We're very pleased that you will think about doing......., but (to the attorney, if one is present) correct me if I'm wrong, aren't (you)(owners) required, by law, to provide this?"

    "What if......." (alluding to possible consequences of no agreement)

    (If owner makes attacking comments) "Do you think those kinds of statements are helpful to this discussion

"Planned" Anger/Outbursts

Sometimes, groups involved in negotiations, use "emotional outbursts" or "public disagreement" as a tactic. USE THIS TACTIC GUARDEDLY, and only if you have thought it through, planned it, AND practiced it.

In this tactic, one person assumes the role of the "heavy" angrily stating that the session is getting nowhere, that it should be ended and the association should move onto more aggressive actions (i.e. going on rent-strike, picketing in front of the owner's home, informing the religious society the owner may belong to of his/her unethical treatment of tenants etc. -- use your imaginations). A "designated" tenant then "tries" to calm down the first tenant, may bring him/her out of the meeting room to "talk" and then, upon returning, tells the owner that although you are trying to control the group, it will be hard to sustain it unless you can come to some points of agreement.

Role-Play a Negotiation Session

Frequently, tenant groups find it helpful to practice a negotiation session by role-playing. A tenant playing the part of the owner can help prepare the negotiation team for his/her responses and attitude to the association's demands.


At the Negotiation Session

Introductions

The tenant spokesperson should introduce him/herself to the owner and should introduce the other tenants present, stating who will speaking on behalf of the group and who will be taking minutes. Re-state that the team is speaking on behalf of the tenants' association.

Sometimes, owners attend negotiations with their attorney and/or managing agent. If others are present, ask the owner to introduce them and to identify their roles at this meeting. Their presence may, in fact, make the session more productive as the owner will not be able to delay decisions stating he/she has to confer with his/her attorney, etc. If the owner's attorney is present, you can comment that you see his/her attendance as a positive sign of the owner's willingness to reach an agreement.

Important note: On occasion, owners may try to "divide and conquer" by making comments such as, "Why are you here? You never pay your rent on time!" The tenant spokesperson should immediately respond that whether or not this is true, it is a separate issue that is not the purpose of the meeting. UNDER NO CIRCUMSTANCES SHOULD THE 'ATTACKED' TENANT ENGAGE IN A DEBATE WITH THE OWNER. It is in your BEST INTEREST to conduct yourselves in a civil manner.

Opening statement

How you begin can SET THE TONE for the meeting. If you choose, you can thank the owner for agreeing to meet with the tenants, and that all of the association members are hopeful that the session will be productive. You can give some "historical" data as to the forming of the tenants' association, as well as information on the number of apartments represented in the association.

Give a copy of the agenda to the owner

Although you mailed him/her one with your letter requesting the meeting, this one will be in the order you wish to address each issue, as decided by the tenants. As you present each complaint, give the reasons for including them in the negotiations.

State your demands

Negotiate

Ask the owner to respond to each demand. Depending on the owner's response, each negotiation session will vary from this point on.

Caucus

Both parties have the right to caucus (speak privately) away from the meeting table and out of hearing distance from the other party. Should the owner raise an issue for which the tenants' team is not prepared, caucus to discuss your strategy. Additionally, if the owner rejects one of your demands, but offers an alternative, call a caucus to determine whether or not you can or should accept it.

Always remember that the negotiating team is representing the full association, and the decision to reject or accept an offer should not be made in a vacuum. If it is an offer that had been discussed and agreed to by the tenants at their meeting (i.e. one of the "fall-back" positions), the team can return to the table to accept the offer. However, if the offer had NOT been considered previously, or if the team is not sure that the majority of the tenants will accept the offer, return to the table and state that a final decision cannot be made at this time, but it will be put to a vote of the full membership. (Frequently, tenants' groups have more than one negotiation session with their owner to resolve all of the issues at hand).

Another critical time to caucus is if team members start to disagree with each other at the negotiating table AT THE FIRST INDICATION OF DISAGREEMENT. (other than if it is a planned tactic) call a caucus and straighten out your strategy.

Writing out the agreement

At the close of the negotiation session, hand-write an agreement outlining what the owner agreed to do, and by when. The tenant spokesperson should sign the agreement on behalf of the association, and the owner for him/herself. HOWEVER, the owner is not under any legal obligation to sign such an agreement, so if he/she refuses, it does not in any way diminish the success of the session. Remember that the tenant taking minutes has recorded all of the points of the meeting.

After the Negotiation Session

After the meeting, call a meeting of the tenants' association to discuss the negotiations and distribute the minutes to all of the tenants in the building. Keep a copy for the files of the tenants' association. in addition, send a copy of the minutes to the owner. These records can be used later to document the tenants' actions and the owner's responses. As stated earlier, more than one session may be required to resolve all the issues. Try to schedule them as quickly as possible so as not to lose momentum.

Monitoring the agreement

It will be the responsibility of the tenants to document whether or not the owner complies with the agreement that resulted from the negotiations. If the owner does not comply, the tenants' association should send a letter to him/her (as always, by certified mail, return receipt requested) asking what progress is being made. This letter should also put the owner on notice that the tenants are prepared to take further action.

Step Four: Registering Official Complaints

Official complaints can be made with

    CENTRAL COMPLAINTS: 824-4328
    24 hours per day, 7 days per week
    (operated by Office of Code Enforcement,
    NYC Dept. of Housing, Preservation and Development)

Each tenant in the building should be given the phone number for Central Complaints and should be encouraged to call EACH TIME the need arises, i.e. every day for which your building lacks heat/hot water. As the inspector will go only to those apartments or areas of the building for which complaints have been made, this is critical. When the inspector verifies the complaint, s/he will place a violation on the building.

Calling Central Complaints puts the association on record as having taken action, and can be used as proof if there is a need for further actions. All calls made are computerized and if necessary, you can request a printout of the complaints made from your building to use as documentation. (If a court case is pending, the printout is free; otherwise, a fee is charged).

Depending on the severity of the complaint, the Office of Code Enforcement will send an inspector to verify the complaint. Generally, tenants are not told when an inspector will be sent.

If the problem your building is having is (i.e.) sporadic heat/hot water, and on the day the inspector comes there is sufficient heat/hot water, no violation will be issued. Keep calling Central Complaints and keep maintaining your own records of building services.

Step Five: Request A Building-Wide Inspection

"Cellar to Roof" inspections are beneficial because:

  1. the NYC Department of Housing, Preservation & Development (HPD) will not begin legal action against an owner unless an official inspection has been made documenting violations of the Housing Maintenance Code, and
  2. if you go to court later, the judge will accept only the official city department records of the violations placed by the inspector as evidence of the conditions of the building.

How to request a building-wide inspection:

In writing, the tenants association should request a building-wide inspection from the

CHIEF INSPECTOR
CODE ENFORCEMENT UNIT (HPD)
39 Broadway
NYC 10006
(212)248-6355

When will the inspection be made?

It is difficult to say when the building will be inspected after your letter has been sent. (For building-wide inspections, appointments are made). Tenants should follow-up if they have not received a response within two weeks. Once the inspection date is set, make sure that some members of the tenants association are home that day so that they can walk through the building with the inspector to point out the problems.

NOTE: Write down the inspector's name, identification number and the City Department for which s/he works.

On what is the inspection based?

The inspector will place violations on the building based on the owner's responsibilities as listed in the HOUSING MAINTENANCE CODE. [available on TenantNet]

The owner is then notified of the violations that exist and will be given a certain amount of time to correct the violations, depending on the type of violation, as follows:

CLASS A NON-HAZARDOUS: 90 DAYS
CLASS B HAZARDOUS: 30 DAYS
CLASS C IMMEDIATELY HAZARDOUS: 24 HOURS

Tenants can obtain a copy of the HOUSING MAINTENANCE CODE from:

CITYBOOKS
Municipal Building
One Centre Street
NYC 10007
(212)566-2616

The cost is $4.00 if you pick it up, or $5.00 if it is mailed to you. Or, you can come to Lenox Hill Neighborhood Association, 331 East 70 Street, to review the reference copy on hand with the Division of Community Services. Please call 744-5022, ext. 256 or 262, before coming.

Can the association receive a copy of the report?

Tenants can purchase a copy of the inspector's report of the violations placed on your building from

Office of Code Enforcement
39 Broadway
NYC 10006

[note: The HPD Office of Code Enforcement may charge $5 per page (or more) for "certified copies" of the reports. Certified copies are verified as true copies and may be submitted in court. If you're not in a big hurry, you may obtain these reports at no cost by making a request through your local city-councilmember's office or Community Board. These copies might not be certified and it is in a judge's discretion whether or not to accept them.

If the association has a court case pending, the clerk at the court will give you a print-out of the violations for free.

What happens if the owner does not clear up the violations?

If the owner does not clear up the violations, the Code Enforcement Unit can refer the case to:

LITIGATION BUREAU
Housing Preservation & Development (HPD),

which has the authority to take the owner to court. In instances where HPD initiates court proceedings against the owner, it strengthens their case if tenants attend these proceedings, and if necessary, be prepared to testify.

HPD's Litigation Unit is not able to act on all referrals from the Code Enforcement Unit due to staff shortages and a backlog of cases. Tenants, though, can use the information from Code Enforcement to take the owner to court themselves. (See "STEP EIGHT: Tenant-Initiated Court Actions").

Step Six: Filing Complaints With The New York State Division Of Housing And Community Renewal (DHCR)

The New York State Division of Housing and Community Renewal (DHCR) administers, enforces and regulates the two major rent-regulatory systems that cover apartments in New York City: RENT STABILIZATION and RENT CONTROL.

DHCR has the authority to reduce tenants' rents if it finds that there has been a decrease of services in the building, since rents are based partially on the provision of services by owners.

DHCR has established District Rent Offices in each borough to provide assistance to tenants and owners. The location of the office covering Manhattan's Upper East Side is:

DHCR District Rent Office
Lower Manhattan (South of 110 Street)
156 William Street, 9th Floor
NY, NY 10038
(212) 240-6011

Individual Complaints

For problems within a person's apartment, an "Individual Tenant Statement of Complaint" should be filed. DHCR requires two copies to be submitted - the original and one copy. The tenants' association should make two additional copies: one for the tenant and one for the association's records. The association should collect all of the completed forms and mail them as a group to DHCR (see section below: "Filing Complaints.") If some of the tenants need assistance in completing the form, the association should make such arrangements.

Building-Wide Complaints

For complaints that relate to a decrease in building-wide services, the tenants should file a "Building-Wide Statement of Complaint. This form can be completed and signed by designated representatives of the association, however, as many of the tenants in the building should co-sign the part of the form called the "Supplemental Signature and Affirmation." As DHCR requires the original and one copy, make an additional copy for the association's files.

Filing the complaints

Both the individual and building-wide complaint forms can be mailed jointly to DHCR at:

Division of Housing and Community Renewal
Gertz Plaza
92-31 Union Hall Street
Jamaica. NY 11431

Attach a cover letter explaining that you have formed a tenants' association. You can include copies of the letters you sent to the owner to verify that the owner has been notified of the conditions.

When should the complaints be filed?

One of the questions found on DHCR's forms is whether you have notified your owner of the problems; thus, it is more effective if you file the complaint forms AFTER you have been in contact with the owner.

Filing complaints with DHCR can be done as a separate action or, at the same time that your association is taking other actions i.e. Tenant-Initiated court action, etc.).

DHCR's response

Upon receipt of individual complaint forms, DHCR will send each tenant a "docket" number, which is the case number assigned to the complaint. All tenant inquiries related to the complaint should include this docket number. The "docket" number for the building-wide complaints will be mailed to the tenant representative as shown on the form.

DHCR will review the materials sent and will contact the owner for his/her response to the complaint(s) being made. DHCR then will mail the tenants a copy of the owner's response, enabling them to verify its accuracy by filing an answer. If there is a dispute as to whether or not the situation has been corrected. DHCR will send an inspector.

If DHCR determines that there has been a reduction in required services, it has the authority to reduce the tenants rent generally by the amount of the last percentage increase.

Tenants will pay the reduced amount until the service is restored.

Keep in mind that DHCR may take time before responding to your complaint. You do not have to wait until you hear from DHCR before taking further action.

Step Seven: Collectively Sending Rent Money To Owner

Either as a separate action, or concurrently with others outlined in this section, the tenants' can send their rent money to the owner, as a group. This type of action gives the owner a strong message that the association is unified and effective. The checks should be made out as usual but mailed together with one cover letter signed by the association. Depending on the severity of the building conditions, how long the situation is taking to resolve, as well as other actions the tenants vote to take, this action can be repeated each month.

Step Eight: "Tenant-Initiated" Court Action

Individual tenants, as well as tenants' associations, often bring their building owners to court in order to resolve their housing complaints. Tenant-initiated court actions are referred to as "HP" actions which stands for "Housing Part." Such court actions can be very effective, but at the same time they can be a time-consuming and sometimes frustrating process.

Does the association need an attorney to take the owner to court?

No. Housing Court is set up so that tenants can represent themselves effectively, without the presence of an attorney. In addition, the NYC Department of Housing, Preservation and Development operates a program that offers assistance to tenants who are going to Housing Court, as follows:

Community Action/Tenant Assistance Unit (CATA)
125 Church Street
NYC 10007 (212)566-6222

At a full meeting of the association, discuss with the tenants the steps involved in taking your owner to court. Find out if the tenants are willing and able to put in the time and effort needed to initiate and follow-through on this act on their own, or whether they would be more willing if an attorney were retained. Put this to a vote. If the association decides to hire an attorney, it should be prepared to pay the lawyer's fee, as judges do not always order the owner to pay the tenants' legal fees.

Filing the papers to begin an HP action

To initiate the lawsuit tenants must go to the Clerk's Office located on the first floor of:

Civil Court
State of New York Housing Part
111 Centre Street
New York City

The Clerk of the Court will give you the necessary papers to file. There is a small filing fee. If you need help completing the forms, ask the Clerk of the Court for assistance. Some clerks try to discourage tenants from taking their building owner to court. Should this happen, remind the Clerk that YOU have the right to initiate court action against the owner.

The three sets of papers needed to be completed, filed, and served are:

  1. Order to Show Cause which orders the owner to appear in court; it is filed on behalf of the tenants' association as a whole.
  2. Individual Tenant Affidavits which document each tenant's complaint and must be completed individually by each participating tenant. Some tenants may need assistance completing this form, so make arrangements for this. Each Affidavit must be notarized.
  3. Affidavit of Service -- states how the papers were served (given to) the owner.

Once the Order to Show Cause and the Individual Tenant Affidavits are filled out by the tenants, a tenant representative should bring them back to the Clerk at 111 Centre Street. These documents are then given to a judge who signs the Order to Show Cause and sets the hearing date. The judge will also set the date by when copies of the Individual Tenant Affidavits and the Order to Show Cause must be served on the owner.

Serving the papers to the owner and to HPD:

In person or by certified mail, the tenants' association must serve the Order to Show Cause and the Individual Tenant Affidavits to the owner by the date indicated by the judge. The person who acts as the "server" must then complete two copies of the Affidavit of Service stating how these documents were served. This affidavit must be notarized. The completed Affidavit of Service and the original copy of the Order to Show Cause must then be brought back to the Clerk of the Court.

As HPD is the agency responsible for ensuring that violations are corrected it is also a defendant in such cases. Thus, in addition to serving the owner, the tenants must also serve

HPD's Litigation Bureau
125 Church Street
New York, N.Y. 10007

It is best to go in person when serving HPD.

Who should be prepared to go to court?

As several court appearances may be required before the case is settled, it is not necessary for all of the tenants to be prepared to go to court on the first court date. Usually, the presence of the full membership may be needed by the third or the fourth court date. It is recommended that the tenant representatives who go to the first two or three court dates make arrangements for other tenants to be "on call" so, if necessary, they can be contacted quickly and asked to appear, depending on the progress of the case.

If some of the tenants (i.e. elderly/handicapped) need help getting to court, the association should try to make such arrangements. In addition, tenants who have small children may need help arranging for child care. (NOTE: Children CAN be brought to court; in fact, SOMETIMES. crying babies may help speed up the proceedings.) The tenants should know that each court appearance may require spending at least the entire morning, if not the entire day, in court.

Pre-court preparation

A day or two before your scheduled court dates, post notices in the building reminding the tenants of the date and location of Housing Court. If possible, go door-to-door to remind the tenants. (This is also an effective way of assessing who in the building may need help getting to court.) You can set a meeting time at the building so all can go together. The day before each scheduled court dates, compile the association's documentation and have it ready to take with you.

Housing Court case begins

Housing Court is at 111 Centre Street. Go to the fifth floor of the building to Part 49-L which is the court room for all Tenant-Initiated Actions scheduled that day.

a) 9:30 a.m. Check- In:

Check-in with the Clerk at the desk in this court room, and then sit down and wait. After the judge arrives, the cases on the calendar for that day will be called by the Hearing Officer when both parties are present in the court room. Since the owner's attorney may not show up for several hours, it may take some time before your case is called. It is not necessary for all of the tenant representatives to wait in the courtroom, itself. You can take turns while waiting for something to happen.

Sometimes, "roll-call" is taken. Again, this first call is to determine if all of the parties involved in each case are present. Your case can be called either by using the individual names of the tenants, or the building address, or both, so it is important to pay attention.

b) Judge Arrives:

After the judge arrives, cases are not called in any systematic way. There is a railing that separates the judge from the tenants waiting for their cases to be called. Other than the judge and the Hearing Officer, you will see people going back-and-forth behind this railing. They are HPD attorneys or attorneys who represent tenants or owners. As the judge will be talking to the attorneys, signing papers, and possibly hearing another case, it is unlikely that you will be able to gauge when your case will be heard.

c) HPD Attorney:

There will be an attorney present from HPD's Litigation Unit who has been assigned to your building's case. His/her role is to ensure that the owner corrects the violations, not to represent your tenants' association.

The HPD attorney assigned to your building will call out your building's address (or individual names of tenants) and will ask to speak to you. Write down the attorney's name and telephone number in case you need to contact him/her as part of your court follow-up. Describe to the HPD attorney what the building conditions are like, show him/her all of your documentation, photographs, etc. If there were a court ordered inspection, the HPD attorney should have a copy of the inspection results, listing all of the violations and by when the repairs need to be made. The HPD attorney will also meet with the owner and/or the owner's attorney.

d) Possible settlement before case goes before judge:

The HPD attorney may ask you to try to negotiate a settlement between the tenants and the owner. (Should you agree, these negotiations may or may not be in the presence of the HPD attorney.) The owner may agree to make the repairs, but may argue that more time is needed. The tenants can privately caucus to discuss whether or not to accept the time frame offered. If the majority of the tenants agree, the HPD attorney will draw up a "Stipulation" that is a written statement indicating this agreement between the owner and the tenants. The stipulation, which may be handwritten, will subsequently be signed by the judge. Although signed by the judge, the terms outlined in the stipulation may not be "ordered" by the judge, as would happen after the case is tried and the judge finds for the tenants.

If the majority of the tenants do not agree with the owner's offered settlement, stand firm in your demands that the conditions require immediate attention, and demand that the case be brought before the judge.

e) Case is tried by the judge:

With the HPD attorney present, the judge will ask both the tenants and the owner (or the owner s attorney) to testify on the building's conditions and reasons for these conditions. Your documentation, copies of letters to the owner, official inspection reports, tenant testimonies, etc. should all be presented at this time. If the testimonies of the tenants and the owner conflict, the judge may order an inspection of the building, in such situations, the case will be re-scheduled until after the inspection.

If the judge finds for the tenants (agrees with your case), the judge will write out an "Order of Repair" which orders the owner to make repairs within specific periods of time. Generally, the amount of time allowed will be those specified by law for each type of violation (Class A Non-Hazardous: 90 days; Class B Hazardous: 30 days; Class C: Immediately Hazardous: 24 hours). The owner will be asked by the court to sign the agreement. As noted above, a court order after trial is much more binding than a stipulation.

Follow-up that will be needed after court

The tenants, not the court, must take responsibility to monitor and/or verify whether the owner is complying with the court-order by correcting the violations within the specified time frame.

Owner makes repairs

If the owner makes all of the repairs in a timely fashion, CONGRATULATIONS!

Owner makes no repairs, or only corrects some of the violations

In situations of non-compliance by the owner, it will be up to the tenants to re-institute court action. Tenants have two courses of action open to them:

  1. You can contact the HPD attorney who was present in court during the original trial and request him/her to take on the case. (Note: given the caseloads of HPD attorneys, this may not be a viable option) or,
  2. You can return to the Clerk of the Court with all of the original papers as well as the court-order and request another court date with the same judge.

Whichever alternative you choose to bring your case back to court, another building inspection will have to take place to provide official verification to the court that all or some of the violations still exist. It will be up to the tenants to request this inspection.

What can the court do in cases of non-compliance?

If an owner does not comply with the court order, s/he can be found in contempt of court. The court has the authority both to fine the owner, as well as to sentence the owner to a jail term. (The fine that an owner pays does not go to the tenants; it goes to the city.)

Step Nine: Withholding Your Rent

As there is no law or statute that gives tenants the right to withhold rent, even for the most compelling reasons, a court may not accept lack of services as justification for withholding rent. When building owners bring tenants to court for non-payment of rent, the tenants must be able to soundly and accurately justify and prove why they withheld rent. Documentation must be available, and tenants should be prepared to testify before the judge. Even if you have covered all bases, the judge still may order you to pay the rent.

At the same time though, because it may cause the owner a financial hardship withholding rent may be the only action that makes an owner respond to your complaints. And (sometimes for the first time) the owner has to acknowledge and deal with the entire tenants' association rather than individual tenants in order to be paid the rent money. Although it is not necessary to have all of the tenants participate in a rent-withholding action, it is most effective when as many tenants as possible are part of this action.

In LHNA's opinion, withholding some or all of the rent is an action that should be considered by the tenants' association after you have attempted other actions. Tenants should understand fully what is involved in such an action and should be both willing and able to follow through on the actions necessary.

Rent strikes require patience, good organization and good record-keeping. Some associations run into difficulties with rent-strikes because they were either unaware of or did not safeguard against the following issues. LHNA recommends that you review the five points outlined below with your full membership to ensure that your group does not fall into these pitfalls:

  1. It is unlikely that the case will be resolved immediately.

    Frequently, owners wait for months before they take tenants to court for non-payment of rent (dispossess and subsequent eviction proceedings) hoping to discourage and frustrate the tenants and thus weaken the association. During that wait, the owner may be hoping that people will lose interest. And, the owner won't be making repairs. Keep in mind, though, that this year's no heat/hot water can also happen next winter, too.

  2. The owner may try to weaken the solidarity of the association by only issuing dispossess notices to a few tenants.

    Although all or most of the tenants may be participating in the rent- withholding action, the owner may initiate court action only against one or a few tenants at a time. These "few" tenants may be those the owner perceives as most vulnerable. If this happens, those tenants directly affected should schedule their court hearing for the same date, and, as many other tenants in the building as possible should attend these proceedings in support of the tenants and to document to the court that the full association is on rent strike. In addition, the one or few tenants who received the dispossess can file harassment charges against the owner for retaliatory eviction.

  3. Tenants who receive a dispossess notice MUST respond within five days.

    Once a tenant receives a dispossess notice, s/he must respond to it in housing court within five days. Tenants who fail to do so may LOSE BY DEFAULT and risk eviction.

  4. The tenants must be prepared to justify in court why they withheld rent

    Once in court, the tenants must justify why they are on rent strike. Evidence in the form of written complaints to the owner, petitions, copies of official inspection reports and code enforcement documents copies of complaint forms filed with DHCR, tenant testimonies and photographs of existing conditions should be available.

  5. The rent money must be managed properly

    During court proceedings, the judge may order tenants to pay either some or all of the rent to the owner. If the tenants are unable to do so, they risk being evicted. Listed below are LHNA's recommended procedures for managing the rent monies during rent withholding actions.

Rent-Strike Procedures:

Gauge the willingness of the membership to go on rent strike:

As successful as rent-withholding actions can be, they can be a lengthy and frustrating process. Also, tenants should understand that it is likely that a rent strike will result in the owner bringing the tenants to court for non-payment of rent. Thus, it is important that the association's membership be willing and able to both initiate and maintain the rent strike for as long as it may take.

During tenants' association meetings, talk about the pro's and con's. Discuss the steps involved to find out if the tenants are willing and able to put in the time and effort to carry out and follow-through on such an action. If only a few people advocate for a rent strike, you may need more time to talk it over. Some of the reasons that tenants may be wary of rent strike actions may be that they are afraid of being evicted; or they may not believe the problems are serious enough to warrant such an action, or they may not feel they can take the time off from work or other responsibilities to follow through on the actions.

Keep in mind that rent-strikes require good planning, good record-keeping and good organization. Although the participating tenants will not be paying their rent to the owner, these monies must be set aside and properly accounted for so that if ordered by the judge to pay either all or some of the rent, it will be readily available.

Does the association need to retain an attorney?

As with "Tenant- Initiated" Court Actions, it is not necessary to retain an attorney to go on rent strike; however, discuss with the tenants whether or not they would be more willing to consider a rent-strike if they were represented by an attorney. Make sure that if the tenants choose to retain an attorney, they should be prepared to pay the legal fees.

How should the funds be managed?

To safeguard against individuals spending the rent money, it is recommended that tenants DO NOT HOLD THE MONEY THEMSELVES.

Open a bank account

The tenants can open a checking account in a local bank as an unincorporated association, in the name of the tenants' association, i.e. "331 East 70 Street Tenants Association. It is likely that the bank will ask for someone's social security number to open this account. If it is a non-interest bearing account, the bank is not required to file a 1099 with IRS.

It is strongly recommended that all transactions for this account require TWO SIGNATURES. If the association does not have officers, you can hold a special election allowing people to vote on who, from the group, will manage the rent money.

Collecting the rent money

The rent checks or money orders from the participating tenants should be made payable to the tenants' association and deposited into the group's bank account by one of the tenants whose signature is on the account.

Tenants can be asked to put their rent checks under the door of a designated tenant at the beginning of each month, or, one or two tenants can go door-to-door to collect the rent money. Each tenant should be given a receipt documenting that their rent was paid each month to the tenants' association. NOTE: Anyone who does not pay rent to the tenants' association is NOT on rent strike.

Bookkeeping

Using a ledger book purchased in any stationery store, the association should keep a record of the rent payments made by each tenant. In addition, records should be maintained of all deposits, withdrawals and dates for same. NO MONEY SHOULD BE WITHDRAWN FROM THE ACCOUNT UNLESS ALL OF THE PARTICIPANTS KNOW AND AGREE TO ITS USAGE.

A simple chart that you can use to record rent payments is as follows:

=============================================================
Apt.    Tenant Name      Monthly Rent    JAN            FEB

2C      Joanne Carroll    $461.53        Pd. 1/3/86
                                         $461.53

3D      Lynne Daly        $276.44        Pd. 1/5/86
                                         $276.44

3F      Steven Black      $494.10 Pd.    1/4/86
        Ernest Fisher                    Black $247.05
                                         Fisher $247.05

4C      NOT PARTICIPATING

etc.
=============================================================

Notify the owner that the association is on rent strike

LHNA recommends that you let the owner know that you are on rent strike. By certified mail return receipt requested, send the owner a letter indicating that the tenants' association is on rent strike as of a certain date. List the names of the participants and tell the owner that the group intends to stay on rent strike until the demands are met. Be specific in your demands, i.e. repair (x) by (y) date.

Preparing for the receipt of notices of petition (dispossess notices)

Eventually, the owner will issue non-payment of rent notices (dispossess) to get the rent money that the tenants now control. Keep in mind that many owners do not issue all of the non-payment of rent notices at one time.

An officer of the association or a member of the steering committee can be designated to coordinate the tenants' responses to the dispossess proceedings. Each tenant should be advised to contact the "Dispossess Coordinator" immediately upon receipt of the dispossess notice. Depending on the size of the building, this task can be broken down floor-by-floor, with floor captains working hand-in-hand with the association's central dispossess coordinator.

"Notices of Petition" (dispossess notices) served on the tenants

Generally, dispossess notices are "served" on (given to) the tenants in one of two ways:

CONSPICUOUS SERVICE: one notice is posted on the front door of the apartment, one is sent by regular mail, and one is sent by certified mail. If any of the tenants participating in the rent strike are going away for a period of time during this phase, they should make sure that someone in the association is either picking up their mail or checking their door.

PERSONAL SERVICE: A licensed process server will personally serve papers on the tenant by handing them to the tenant or to an adult who claims to occupy the apartment.

"Answering the dispossess notice within five days

Within five working days from the "date of service" (Monday through Friday, not including holidays) the dispossess notice MUST be answered in Housing Court. This means that it must be brought to the Clerk of the Court at Housing Court, located on the first floor of 111 Centre Street. If the dispossess notice is not answered in Housing Court within five days, the tenants to whom the notices were issued may lose the case by default and risk eviction.

As the tenants receive the dispossess notices, they should give them to the association's "Dispossess Coordinator." The "Dispossess Coordinator" can wait three days from the "date of service" to see if anyone else in the building will receive them. All of the tenants (or as many as possible) who received the notices should go to Housing Court in person and as a group The notices should be given to the Clerk of the Court (first floor, 111 Centre Street). The tenants should request that the Clerk schedule the same court date for each of the hearings.

If some of the tenants are not able to go in person, the "dispossess coordinator" can answer the notice on their behalf. If tenants report to court on their own to answer the notice, they should request the same court date as the rest of the association's rent strikers.

Tenants have the right to enter a counterclaim against the dispossess brought by the owner. In cases related to lack of building-wide services, the basis for such a counterclaim is that your Warranty of Habitability has been breached since the building has been (i.e.) without heat and hot water and thus the tenants are on rent strike. (When a landlord rents an apartment, s/he "warrants" that the apartment is livable, safe and sanitary. Ref: Real Property Law Sec. 235-b).

The counterclaim can be entered when the tenants go to court to answer the dispossess notices. Separate counterclaims should be prepared by each tenant who received a dispossess notice, explaining why the rent has not been paid. The statement can be written in advance on a plain piece of paper, and should be signed in front of the Clerk of the Court. For those tenants unable to attend personally, the statement can be prepared and signed beforehand, but the tenant's signature must be notarized.

Pre-court Preparation

Apply at 111 Centre Street for a print out of the official violations placed on the building by the Code Enforcement Inspector(s).

The evening before your scheduled court date gather and sort out all of your documentation:

  1. copies of correspondence with the owner by the tenants' association
  2. the return receipts from the Post Office verifying owner receipt of your letters
  3. copies of correspondence by others assisting you (i.e. LHNA, elected officials)
  4. copies of complaint forms filed with DHCR and any responses you may have received
  5. tenant records of (i.e.) dates and times of no heat/hot water
  6. supporting documents, i.e. U.S. Weather Bureau record of temperatures & dates
  7. photographs of the building and/or apartment conditions
  8. print out of the official violations placed on the building by Code Enforcement

In addition, bring with you an updated listing of the names of the tenants including both their day and evening telephone numbers so that the owner cannot later say that s/he had trouble gaining access into the apartments to make repairs.

Who should go to court?

All of the tenants who are responding to the dispossess notices (notices of petition) must appear in court with the association's documented evidence of the building problems.

To reinforce that the tenants' association is on rent strike and not individual tenants, it is very effective if members who did not yet receive dispossess notices go to court in support of their neighbors. Tenants should understand that it may be necessary to go to court, en masse, several times as the owner may stretch out when s/he issues the dispossess notices.

Housing Court Case Begins

9:30 am

Your first stop will be "PART 18," which is in Room 107 on the first floor of 111 Centre Street This is a very large, busy, noisy and oftentimes confusing place. Sit down and wait.

Roll Call

LISTEN CAREFULLY FOR YOUR CASE TO BE CALLED. It may be called using the building address vs. your owner's name, or the individual name(s) of the tenants vs. your owner's name or both the tenants' names and the building address vs. your owner's name so pay attention if your building is owned by a large company, s/he may have several cases on that day's calendar against other tenants/buildings. So make sure that you respond to your case.

"TENANT READY"

When your case is called, yell out "Tenant Ready" loudly and clearly. One of several things will then happen:

Owner (or owner's attorney) responds 'READY'

The owner or more likely, the owner's attorney, will answer "Ready," and both the tenants and the owner will be assigned to a trial "part" which is the courtroom in which the case will be heard by a judge. This courtroom probably will located on an upper floor of the building.

Go there and wait until the court officer calls your case. It is difficult to say how long you will have to wait until your case is called. The judge will then hear both sides of the case.

Sometimes, even if the owner has answered "Ready" s/he may not be. Once in the trial part, the owner may ask for an "Application" (see below). If the owner asks for an application, tell the judge you do not want a postponement.

Owner Does Not Answer

If the owner does not answer, it is most likely that another court date will be set.

You have the right to ask for an "INQUEST," a one-sided trial at which only the tenants present evidence. (Not likely to be granted). If the judge does grant an inquest and finds for the tenants, the owner will be ordered to correct the violations, BUT since the owner is not present, the judge will ask you to serve the order on the owner, either in person or by certified mail.

Owner Answers 'APPLICATION'

The owner may answer "Application" which means that the owner wants an adjournment to another day. If the tenants do not want the case to be postponed, you can tell the judge you are ready to prove your case and request that the trial be held, as scheduled. It is up to the judge to decide whether to hold or delay the trial.

In cases of lack of heat/hot water, "respectfully" remind the judge that such cases should not be adjourned for longer than three days.

If the judge decides to adjourn the case, request that the file on your case be marked "Final Against Landlord" which means that the trial must be held on the new date and the owner cannot get another adjournment.

"TENANT APPLICATION"

If the tenants are not ready for the trial, answer "Tenant Application" and explain to the judge why you need an adjournment, i.e. you are awaiting receipt of critical documentation.

If the owner wants to discuss a "settlement" before the trial

Some owners, while waiting in the trial part for the case to be heard, may ask to discuss with you a settlement before you actually see the judge. The tenants present should caucus on their own to determine whether or not they want to hear out the owner. (Under no circumstances should any one tenant take it upon him/her self to initiate a private talk with the owner. Remember that your building is functioning as a GROUP and not individuals).

If the tenants decide to listen to what the owner offers, you are not under any obligation to accept his/her offer. YOU STILL WILL HAVE THE RIGHT TO A TRIAL before the judge.

Case is heard by the judge

It will be the tenants' responsibility to prove their case. You must be prepared to present thorough evidence, documentation and clear testimony to prove your claims related to the building's conditions. In addition, you must be prepared to prove that the owner has full knowledge of these conditions, and yet has not acted upon them. As in Tenant-Initiated court proceedings, a record of the official violations placed on the building by Code Enforcement will be critical.

The tenants should ask the court to order the owner to make the repairs. Sometimes, tenants also ask for a rent abatement based on the number of days that they were without essential services. For example, if the building lacked heat and hot water for 30 days, you can ask for one month's rent abatement. In most cases, it is unlikely that a judge will order a day-for-day full rent abatement, and may order a partial one instead. And, in some cases, no rent abatement is granted, at all.

Depending on the situation and the testimonies by both the tenants and the owner, the judge may order a court-ordered building inspection. In a few cases, judges have gone to the buildings to see, first hand, the reported conditions of the building.

Judge finds for the tenants

The judge will issue a court-order that will be signed by the owner and the tenants that can include the following:

  1. the court orders the owner to make the necessary repairs, specifying the time by which the work must be completed.
  2. the court orders that all or part of the rent be paid to the owner so that the money can be used by the owner to make the necessary repairs.
  3. the court can agree to let the tenants continue to withhold their rent until the owner has made the repairs.
  4. the court can order a full or partial rent abatement based on the number of days that the building lacked essential services.

The tenants should also ask the judge to include in the court-order a statement that if the repairs are not made, that the matter be restored to the Housing Court calendar within three days, and with the same judge retaining jurisdiction.

Follow-Up to Court Proceedings.

It will be the tenants' responsibility to notify the court if the owner does not comply and make all of the necessary repairs within the specified time. In cases of non-compliance, the tenants must go back to the Clerk of the Court with a copy of the signed court-order to schedule a return court date within three days, with the same judge.

What can the court do in cases of non-compliance?

The owner can be found in contempt of court. The court has the authority both to fine the owner, as well as to sentence the owner to a jail term. (The fine that an owner pays does not go to the tenants; it goes to the city.)

 

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