CTRC Fact Sheet Index

TenantNet note: These Fact Sheets were published by CTRC in the mid-1990's. Some information will be out-of-date. As far as we know, there have been no updates to these fact sheets. While much of the information may still be valid, the reader should exercise caution.

CTRC Fact Sheets -- reproduced with permission.
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The Community Training Resource Center (CTRC) is a city-wide not-
for-profit organization that champions the rights of modest and
low-income tenants and promotes the preservation, improvement,
and expansion of affordable housing. CTRC provides training and
technical assistance for neighborhood housing groups, community
based organizations, legislative staffs and social service
providers.

CTRC produces fact sheets on tenants' rights, develops and
publishes research reports, and provides a written guide to New
York City government processes. CTRC advocates on budget policies
that affect housing and related services in low-income
neighborhoods. CTRC has led the campaign for the improvement and
expansion of the city's Housing Maintenance Code inspection and
enforcement services.
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CTRC Fact Sheet #___

          NOTE: The following Fact Sheet was written
          several years ago and may be out of date. The
          reader is cautioned to seek up-to-date
          information regarding this subject matter.


A GUIDE TO HOUSING PART ACTIONS

Some tenants pay heavily for landlord neglect. In winter, they
suffer and sometimes die because of landlords' failure to provide
heat. There are four ways to respond to a landlord's failure to
provide services.

o    The first, only for rent regulated tenants is to file an
     complaint with the New York State Division of Housing and
     Community Renewal (DHCR) which can result in a order to
     correct violations and a rent reduction.

o    The second is to report violations to the Office of Code
     Enforcement of the New York City Department of Housing
     Preservation and Development.

o    The third is to withhold rent individually or as a tenant
     association. This can result in both a court order to
     correct violations and a rent abatement. Tenants who go on
     rent strike must be prepared to be sued in Housing Court for
     non-payment of rent and defend their grounds for withholding
     the rent. Withholding rent is not illegal but permitted by
     the Warranty of Habitability Law which requires landlords to
     provide safe and habitable condition in return for the
     payment of rent.

o    The fourth response is to sue the landlord in New York City
     Housing Court for failure to provide services and make
     needed repairs. This is the subject of this fact sheet.
     Tenants can and should use more than one of these responses
     simultaneously.

The New York City Housing Maintenance Code (HMC) and the Multiple
Dwelling Law (MDL) set forth the minimum fire, health and safety
standards that landlords are required to provide in their
buildings. Although various city and state agencies are
responsible for the enforcement of these codes, the task of
getting these agencies to act falls primarily upon tenants.

A Housing Part ("HP") Action is a practical way to force a
landlord to adhere to these laws. HP Actions solely address
physical conditions of a building. Payment of rent or other non-
repair issues cannot be raised by the landlord during this
proceeding. It is the only legal action tenants can start
themselves other than a 7A proceeding. An HP Action asks the
Housing Court to order a landlord to perform required repairs
while a 7A proceeding asks the Court for the appointment of an
administrator to substitute for a negligent landlord. In an HP
Action penalties and fines may be applied if the landlord fails
to comply with the order. An HP Action does not require a lawyer;
it does require a well organized and prepared tenant or tenant
association.

The HP Action can be initiated by either of two parties: the
affected tenants themselves or the Litigation Bureau of the New
York City Department of Housing Preservation and Development
(HPD). Whoever initiates, HPD is always a named party as the City
agency charged with enforcing the housing codes. The Litigation
Bureau may initiate the legal action when there is no tenant
association to intervene or where a local community group has
persuaded the unit to do so.


Before You File An HP Action:

1.   It is best, although not required, to inform your landlord
     in writing about apartment and building-wide conditions
     prior to taking court action. A copy of such a letter, sent
     by certified mail, return receipt requested, detailing code
     violations can be used later in court to demonstrate that
     the landlord knew about the violations.

2.   Research your building to build a successful case. For
     instance, you must know the name and address of the landlord
     or managing agent to serve the court papers. (For help in
     finding ownership information and records such as liens,
     code violations or tax histories, see our fact sheet, Tenant
     Research and Resources). If the building has no registration
     information and no address for the landlord can be found, a
     7A proceeding to appoint an administrator should be
     considered.

3.   Call HPD's Central Complaints Bureau at (212)824-4328. Code
     complaints eventually lead to an inspection and the
     recording of violations by the HPD Office of Code
     Enforcement (OCE). The landlord is then ordered to remove
     these violations and certify removal to OCE.

4.   Rent regulated tenants (rent stabilized or rent controlled)
     can file an administrative complaint (Form RA-84, Complaint
     of Decrease in Building-Wide Services or RA-81, Individual
     Tenant Complaint of Decrease in Services) with the DHCR.
     DHCR should order the landlord to restore services and make
     repairs and reduce the rent until he does. This rent
     reduction cannot be lifted until the violations have been
     corrected and the landlord has filed for and received a rent
     restoration order. However it takes DHCR several months (or
     possibly years) to process these cases.

5.   Make a list of individual apartment and building-wide
     conditions -- problems such as plumbing leaks, falling
     plaster, holes in ceilings and floors, insecure entrance
     doors etc. Document the lack of heat or hot water by using a
     dated heat chart that compares indoor and outdoor
     temperatures. Photograph visible violations, date the photos
     and identify the location. This list will serve as the basis
     for your HP Action complaint.

6.   Document incidents of harassment by your landlord.
     Harassment is deemed in law as a continuous course of
     conduct by the landlord intended to cause rent-regulated
     tenants to waive their rights or move out. Housing Court
     will not actively address incidents of harassment, but such
     acts may be seen by the judge as evidence or the landlord's
     negligence and the tenants' vulnerability. Rent regulated
     tenants may file a harassment complaint with DHCR (Form RA-
     60H) which may lead to an administrative hearing. A civil
     lawsuit against the landlord may also be filed when the
     harassment has been particularly severe. Non-regulated
     tenants do not have access to DHCR.

For emergencies where immediately hazardous violations exist and
the landlord refuses to take action (such as with a broken boiler
or lack of fuel oil) contact the Emergency Repair Program of HPD.
Where lack of fuel oil is the violation, tenants can purchase
their own fuel and deduct the cost from their rent payments. The
use of rent money to pay for fuel building electricity or gas is
protected under the law.

You do not have to take all of the above steps, but each can
increase your clout with your landlord, the landlord's attorney,
and the Housing Court.


Who Can File And How To Do It:

Any tenant, or group of tenants, in a privately- or city-owned
building, including public housing, of more than two units is
entitled to file a HP Action.

The tenant association approach is the most effective by force of
numbers in persuading the Court and the landlord to clear
violations. It also helps to build the association. Individual
tenant HP Actions are recommended when violations solely affect
that single tenant or other tenants have vacated the building or
won't participate.

The HP Action Filing fee is $25. This fee which can be paid by
certified check, cash, or money order to the Clerk of the Civil
Court in the county in which you reside buys an index number and
a place on the court calendar. The fee may be waived for tenants
receiving public assistance or other low-income persons. For a
fee waiver ask the clerk for a "poor person's" order which must
completed and signed by a Judge.

The legal papers to start an HP Action are an "Order to Show
Cause" and supporting affidavit(s). They are provided in pre-
printed fill-in-the-blanks form from the clerk of the HP Part.
Each participating member of a tenant association may add his or
her name as one of the petitioners to the Order to Show Cause and
complete a separate affidavit listing violations that affect
them. Housing Court inspectors will inspect only those items
listed on the affidavits. (An affidavit is a sworn statement of
facts and conditions that must be signed in front of a notary
public.) Ask the clerk to help you fill out these papers and,
when completed, the clerk will tell you which room to go to for a
judge to sign them.


Service of Papers

Copies of the moving papers (the affidavits and the Order to Show
Cause) must be served on the defending parties to the case, the
landlord, and HPD, at its Litigation Bureau, 150 Williams Street,
7th Fl., NY, NY 10038, (212) 240-5139. The judge who signs the
Order to Show Cause specifies on the Order itself how service is
to be made. Some judges require service by certified mail, return-
receipt requested. Other judges require delivery of the papers to
the landlord or managing agent to be made in person. If personal
service is ordered, ask the landlord or agent to acknowledge
service (by signing and dating the back of the originals). If
acknowledgment is refused, write a notarized statement for the
court indicating that you attempted personal service that was
refused by the landlord. The originals of the papers must be
returned to the Court by the time indicated by the judge on the
Order to Show Cause. Bring the return certified mail receipts, or
an affidavit of service if required, as proof that service was
completed. A court date will usually be scheduled about ten days
from the day the papers are filed with the court.


Appearance in Court

On the appointed day, the case will be called by the clerk of the
court in the designated courtroom, and, if all the parties are
present, should be marked "ready" and may be heard that day.
Tenants must be on time for this call, and in the right place, or
will lose a case by default. The landlord or judge may challenge
service of the court papers. If they were not served correctly,
the case may be thrown out and the tenants will have to start all
over again. The landlord may request an adjournment which the
judge will probably grant. (Each side is allowed one automatic
adjournment, but you can argue against the landlord's request,
particularly if the violations are hazardous.) If adjournment is
granted, ask the judge for the landlord's file to be marked
"final against landlord" to guarantee that the case is heard on
the adjourn date. In cases of lack of heat or hot water, an
adjournment should not be for more than a few days.


Pre-trial maneuvers

Before the hearing, try to speak to the HPD Litigation Bureau
attorney or paralegal about the specifics of your case. Encourage
this person to help you urge the court to resolve the case as
thoroughly and as quickly as possible. HPD should be particularly
interested if the landlord has a history of neglect and non-
compliance in this or other buildings. A court-ordered inspection
of the violations may be ordered if the landlord disputes the
tenant's claims. The tenants, not the landlord, will be informed
of the inspection date. It is essential to provide access to the
inspector at that time. Make access arrangements to apartments of
tenants who cannot be present.

Few HP Actions go to trial. Most are "settled" through a
"conference," an informal hearing that usually results in a
consent order signed by all the parties. If the landlord wants to
"settle," usually to avoid the costs of trial, the best option
for the tenant is to get the landlord to consent to an order to
correct the violations, which will be listed in the order. This
order has the same force of law as one issued after a trial. The
judge should always read, explain, and sign all orders. The
Litigation Bureau will codify all violations and set a time limit
for the landlord to correct, and a date to return to court. (The
Housing Maintenance Code requires "C" violations to be corrected
within 24 hours, "B" violations within 30 days, and "A"
violations within 90 days.) Both the judge and the Litigation
Bureau will probably be flexible in allowing the landlord time --
beyond what the law requires. If you cannot agree to this, state
your reasons. Remember that if an acceptable resolution cannot be
reached, you have a right to go to trial.


Trial

When no settlement is reached, there may be a trial if all the
parties are present. During a trial, tenants testify under oath
as to the violations and the effect of such conditions on the
tenants. Written evidence can be submitted. Many landlords will
claim they didn't know about the violations; to counter this,
show proof of your attempts to inform the landlord, and the
complaints made to other city and state agencies. Even if the
landlord had no prior notice of conditions, the Court is not
prevented from issuing an order to correct. When the Court
determines violations exist, a correct order will be issued,
requiring the landlord to fix the violations within a stated
time, depending on the seriousness of the conditions. The order
to correct should also include a date to return to court to
report on the landlord's compliance. If the court does not set a
firm return date, ask the judge to specify what steps the tenants
must take to give all parties notice of restoration of the case.

If at time of trial neither the landlord or his attorney appears,
there may be an "inquest," a hearing of the tenants' claims
without the landlord's side present (ex parte). This typically
results in an order to correct. This order then must be served on
the landlord by the tenants.


After The Court Order

Getting a court order for repairs is relatively easy; getting it
enforced is harder. You can't rely on the court, a lawyer, or any
government agency to follow through. The landlord may not clear
violations in the time stipulated in the order. Repairs may not
be done in a workmanlike manner as required in the HMC. Delay and
faulty repair work are valid grounds to bring the case back to
court. The work can be re-inspected by court inspectors. If there
is no scheduled return date, contact the judge as provided in the
original order. The letter should propose a return date which
must be a minimum of eight days from the day the letter is sent.
Tenants must then serve a copy of this letter on the landlord and
HPD. On the return date, go directly to the HP Part courtroom at
the designated time. Bring the proof of service of notice on the
other parties. At the hearing, the landlord will have to explain
to the court why the work was not done. If the work is partially
completed, the judge may allow additional time. If this is
acceptable to you, continue to insist on a firm deadline for
completion of the work, and provisions for another return date
for the court to monitor compliance. If the landlord still does
not perform, you can ask the court to take further measures. The
judge can levy fines (collected by the city's Finance department)
that go to the city. The threat of fines can leverage the
landlord into action. Fines can become a lien against the
landlord's properly. Again, tenants should involve themselves in
any negotiations involving fines. Penalties (fines that go to the
tenants) can also be imposed on the landlord if the judge finds
the landlord in contempt of court for defying the order. In even
rarer cases, landlords are jailed for contempt of court. Contempt
motions can be brought by tenants or HPD, but tenants may need a
lawyer to succeed.

During these hearings, landlords may complain that they tried to
make the repairs and the tenant did not provide access to the
apartment. The law states that tenants must provide access (at a
date and time agreed upon between the landlord and tenant) for
repairs and that failure to do so is grounds for eviction.

How HP cases should be handled and resolved in court and what
actually happens are usually very different. Housing Court has,
in large part, failed to use the HP part in an aggressive and
consistent way. Housing Court often refuses to demand landlord
compliance, levy and collect civil penalty fines forcefully, or
jail those who don't comply. This leads to repeat offenders and
increasingly poor building conditions. Pursuing the right to
decent conditions is an important and sometimes a satisfying
fight. There is no way to avoid, however, some very real
obstacles to achieving your goals. Housing court has become
notorious for long delays in having cases heard and judges who
give negligent landlords repeated adjournments and excessive
opportunities to comply with court orders. HPD can also let the
landlord off the hook by not insisting on recovering the entire
amount Of the civil penalties sanctioned by the court. A vigilant
tenant association can overcome these obstacles and achieve
success. Tenants who are on time, document conditions, serve
papers properly and are polite yet insistent in court, have the
best chance of making their landlords complete repairs and
restore services.

                               ###

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These article are Copyright 1995 and 1996 by Community Training Resource
Center (CTRC) and reproduced by TenantNet. They may be freely
redistributed in their entirety provided they are reproduced exactly
as in the originals, including this copyright notice, the opening and
closing informational banners and any references to either CTRC
or TenantNet must be included.

These article are provided as is without any express or implied
warranty. While any information in these article is believed to be
correct at the time of writing, these articles are for educational
purposes only and do not purport to provide legal advice. If
you require legal advice, you should consult with a legal
practitioner licensed to practice in your jurisdiction.

Community Training Resource Center                (212)964-7200
47 Ann Street
New York, NY 10038

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