Lease Renewal Disputes: A Guide
by William Rowen
Tenant/Inquilino, July 2002
With six and a half years of landlord-sympathetic control of the state rent regulatory agency, the Division of Housing and Community Renewal, under Governor Pataki, tenants must watch their step as never before.
At least once every two years, rent-stabilized tenants renew their leases. The landlord must offer a new lease between 90 and 150 days before the old one expires. If the landlord doesnít offer it on time, the tenant can have the renewal date be either the day after the old lease expires or 90 days after the offer.
Frequently, the landlord pulls a fast one and tries to get the tenant to sign a lease that violates one or more of their rights. For example, a renewal lease may be offered late, and/or have a unlawful commencement date; be retroactive and require the tenant to pay a retroactive rent hike; include unlawful riders or request information that is strictly the tenantís private business; exclude the required ďtenantsí rights riderĒ; either misapply the applicable rent adjustments or use the wrong base rent; or be treated as in force by the landlord without the tenant receiving a copy signed by the landlord or his agent. A Rule: Do not agree to go to the landlordís office to renew your lease, or to demands for your immediate signature at your door.
Generally, stabilized leases must be renewed on the same terms, or better terms for the tenant, as the lease they signed when they moved in. So that means if a landlord either inserts clauses or riders that are to his advantage, or excludes previous provisions that were beneficial to the tenant, those changes are null and void, and not enforceable when a dispute arises. Of course, the problem with this is that many a tenant considers the entire current lease to be valid, whether it is or not. A Rule: Analyze every aspect of the renewal offer carefully early in the 60-day consideration period.
The law allows only two landlord-oriented provisions added to a renewal lease: (1) the right to adjust the lease terms or rent by order of the DHCR or the Rent Guidelines Board, and (2) the imposition of the subsequently adopted rent guideline when the lease is executed during a period when the guideline is unknown or pending final adoption. These provisions are preprinted on the two-page state-authorized form (RTP-8) that is the only renewal form allowed under rent stabilization. A Rule: Donít agree to unauthorized riders, give the landlord private information, or accept any renewal form other than the RTP-8.
Tenants should realize that they donít lose any rights by not having a current lease. Their rights are in the rent laws. Leases under rent stabilization are superfluous landlord-oriented documents superimposed onto the rent-stabilization laws to provide landlords with the opportunity to intimidate their tenants. The chief intimidation is, of course, the fear of eviction growing out of the commonplace belief that, without a lease, the tenant loses the right of security of tenure.
Rent-controlled tenants know better. Because that law does not tie rent adjustments in any way to leases, most landlords never bother to ask the rent-controlled tenant to renew their lease, although the landlord has the right to in the law. Landlord lobbyists added leases to the bill that created rent stabilization to empower landlords. Without leases, rents of all stabilized tenants could be adjusted annually or biannually without the trouble, pain and abuse. Nothing else would change, and landlords would lose a big weapon.
So the question for the rent-stabilized tenant becomes: How can I prevent my landlord from using this "lease renewal" process—think "lease intimidation" process—as a bludgeon to take away my rights? First, know or inform yourself of your rights. Second, seek the information you need when the landlord makes the renewal offer, not at the last minute when your 60-day consideration period is about up. Third, respond to the landlordís tricks in a way that leaves a paper trail that says you are pursuing your rights. A Rule: Seek help from trustworthy sourcesóa citywide tenants association like Met Council, a local tenants organization, a pro-tenant local legislator, or a tenant (not landlord) lawyer, if you can afford one. Beware of advice from DHCR.
What if the landlord does not send you a renewal offer? The law says he cannot raise your rent, and that his duty to offer you a renewal simply continues. The tenant has no obligations until the landlord makes a proper offer. A tenant without a lease renewal becomes a month-to-month stabilized tenant with the same rights, and one advantage: The rent stays the same as under the expired lease. A Rule: Donít pay any unauthorized rent hikes tacked on to your rent bill as a month-to-month tenant.
Back to a landlordís improper renewal offer. Besides writing to your landlord to register your objections to the lease offer, you may want to file a complaint with the DHCR on their Form RA-90, Tenantís Complaint of Ownerís Failure to Renew Lease and/or Failure to Furnish a Copy of a Signed Lease. This is usually only advisable when the dispute threatens to go to Housing Court. DHCR decisions often ignore the tenant-protection provisions in the law and code. However, filing with DHCR shows an extra level of seriousness on your part to resolve the issues in your favor, even if you distrust DHCR. A Rule: Always retain copies of all documents, and use regular mail with smaller landlords and managing agents; they often will not accept certified mail, as it usually means trouble. Certified is good with DHCR.
It is potentially an evictable offense to ignore a lease offer. In the past, few landlords, and very few judges, wanted to enforce the tenantís failure to renew a lease rule through eviction. But times, if you hadnít noticed, have changed, and all those tenants with desirable apartments and even remotely affordable rents are targets in the great landlord rush to decontrol any vacant apartment rentable for $2,000 or more a month. More common landlord claims are illegal subletting and non-primary residence.
In a recent case, a tenant tried to escape eviction by claiming the landlord had no right to give notice of non-renewal of lease on the grounds of non-primary residence because the tenant had no current lease. The tenant had refused to sign the prior renewal lease offer because the landlord had used her married name on the form. But the tenant then commenced to pay the rent increase authorized by the lease she refused to sign. A state appeals court found that the tenant had a lease because of her agreement to the increase, without a fully-executed or ďdeliveredĒ document. You canít have it both ways.
If you dispute a renewal, you canít agree to other parts not in dispute to prove your "good faith." This may "deem" the lease you dispute into existence. In fact, the rent-stabilization code changes adopted in December 2000 allow a lease to go into effect by the tenant merely ignoring the renewal offer, if the landlord lets them stayóthough the landlord also has the option to commence an eviction action in court. The lesson here is to dispute improper lease-renewal offers right away and in writing. Donít give the landlord the opportunity to define the dispute his way.