Date: Thu, 14 Aug 1997 21:22:55 -0400
Subject: Vacancy Decontrol: The Devil in the Details
Vacancy Decontrol:
The Devil in the Details
By Tim Collins
from Met Council Tenant/Inquilino July 1997
One of the biggest fears among tenants faced with
the landlord offensive against the rent laws was
the loss of tenure protections or lease renewal
rights. Under the vacancy-decontrol plan offered
by Governor Pataki, once an apartment was vacated,
any new tenant would be totally at the landlord’s
mercy in terms of lease provisions and renewals.
The "saving" of the rent laws basically prevented
that, but the victory came at a substantial price.
Many units will still be lost to decontrol because
of five factors. First, the new law allows
substantial increases upon vacancy, which will
drive many apartments above the $2,000 a month
threshold where full decontrol is permitted.
Second, the state Division of Housing and
Community Renewal’s interpretation of the law lets
landlords add the vacancy increases set by the
city Rent Guidelines Board to the 20 percent
allowed by the state. Third, while current city
law only allows vacancy decontrol if the previous
tenant was already paying $2,000 or more, the
state law decontrols apartments if the landlord
can legally ask $2,000--effectively lowering the
threshold to $1,667 or less. Fourth, inflation and
normal renewal increases will gradually bring more
apartments to the $2,000 threshold. Finally, by
raising rents to the point where the vast majority
of tenants can’t afford them, the new law may
produce an artificially high vacancy rate of over
5 percent. Once reached (and verified by a
triennial Census Bureau study) this would cause
complete decontrol of the entire system. There is
some indication that this Trojan-horse strategy to
undermine the system was intended all along.
Sending rents soaring in the regulated housing
stock is unlikely to encourage construction of new
apartments. As demand for high-rent units is
exceeded, vacancy rates in that submarket are
likely to rise dramatically, and developers won’t
build if there is an oversupply. These vacancies
will not reflect new units being added to the
market, but overpriced old units that were
formerly regulated. Thus, Governor Pataki’s
position that the new law will spur new
construction is totally wrong-headed.
For rent-stabilized apartments, the vacancy
increases are outlined in the chart above.
These increases were explicitly in lieu of the one
and two-year lease-renewal guidelines set by the
RGB, but were allowed to be added to “any other
increases -- under the law. Consequently, the DHCR
has taken the position that since the RGB allowed
a 9 percent vacancy allowance for leases expiring
between Oct. 1, 1996 and Sept. 30, 1997, that
vacancy allowance may be added to the 20 percent
vacancy increase allowed by the new state law--a
total of 29%. This was clearly not the intent of
Senate and Assembly negotiators, and so legal
challenges to DHCR’s interpretation should be
expected.
As the RGB did not allow an additional vacancy
allowance for leases expiing between Oct. 1, 1997
and Sept. 30, 1998, the state law’s formula will
be the only basis for an increase in that time
frame.
In addition, the city’s 71,000 rent-controlled
apartments will go to market upon vacancy, subject
to the new tenant’s right to make a fair-market
rent appeal. We have already seen huge jumps in
these rents upon vacancy. If anyone who moves into
a formerly controlled apartment is informed of the
right to file a fair-market rent appeal--and
succeeds in bringing the rent below $2,000--that
apartment should remain under rent stabilization.
Although outright vacancy decontrol was defeated,
the Rent Regulation Reform Act of 1997 is
essentially a formula for the gradual demise of
rent and eviction protections.
-----
Tim Collins is tenant attorney in the law firm of
Collins & Dobkins. Mr. Collins was for many years,
until 1994, counsel and executive director of the
New York City Rent Guidelines Board. He is
considered an expert in economic issues relating
to rent regulation.
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email:
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Information from TenantNet is from experienced non-attorney tenant
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Date: Sat, 16 Aug 1997 09:26:42 -0400
Subject: Overcharges and DHCR promotes vacancy decontrol
In this issue:
1. DHCR Further Increases Landlord Vacancy Hikes
2. DHCR Internal Memo
3. Overcharges: Bigger Loopholes for Outlaw Landlords
DHCR FURTHER INCREASES LANDLORD VACANCY HIKES
The newly enacted Rent Stabilization "Reform" Act of 1997
sets vacancy increases at 20 percent for two-year vacancy
leases, but it was reported to us that even before
the ink was dry, Dan Margulies of the Community Housing
Improvement Program (CHIP -- a landlord group) had a secret
conference with DHCR to exploit a loophole in the new law.
The existing RGB guidelines allow for a 7% and 9% vacancy
increase until September 30, 1997. The new law was effective
June 16, 1997. DHCR has taken the position that for this
windows period (June 16 to September 30), all vacancy
increases would be at 29% for a two-year vacancy increase
and 27% for a one-year vacancy increase.
According to our source, this decision was directly prompted
by landlords and arrived at without public hearings and
without any input or even notifying the DHCR Tenants Advisory
Committee. [the memo, reproduced below, was reportedly
written by DHCR's Dan Savary]
The new RGB guidelines are effective October 1, 1997 and
contain a zero percent vacancy increase -- meaning no
additional vacancy increases can be added onto the 20% already
mandated by the new law.
With such a massive 29% vacancy increase, any unit now renting
for $1,551 or above will rent for $2,000 and be immediately
deregulated. With other allowable increases (1/40th
improvements and the like), many units now renting below
$1,551 can also be permanently deregulated.
Although the company line by tenants controlled by Assembly
Speaker Sheldon Silver was to attack Governor Pataki on this
issue (criticism which he does deserve), it should also be
asked why all of Silver's lawyers, why Housing Committee Chair
Vito Lopez and the few tenants allowed to be part of the
process didn't see this coming and didn't stop it.
The issue of adding the two rates together became public when
an internal memo was leaked from DHCR describing how landlords
could charge both increases. Despite media scrutiny of this
issue, Governor Pataki refused to reverse DHCR's stand AND
Assembly Speaker Silver refused to make a meaningful effort
to stop it in the ensuing budget negotiations.
********************************************
DHCR'S INTERNAL MEMO
[we have a faded fax copy which is difficult to
reproduce on the web, but we can do so on request]
New York State
Division of Housing and Community Renewal
Office of Rent Administration
Information Services Reference Sheet
Vacancy Increases
6/15 - 9/30/97
The one year vacancy lease increase is 27%
the two year vacancy lease increase is 29%
In addition, if the legal rent was not increased by a vacancy
allowance during the eight years prior to the execution of
this vacancy lease, the owner can add the greater of 1) .6% x
the number of years since the last vacancy allowance was
charged or 2) if no vacancy was ever charged since the
apartment became subject to the RSL, .6% x the number of
years since the apartment became subject to the RSL.
Also, in addition, to owner can add on another $100, if the
apartment rent was below $300 when the tenant vacated.
Finally, if the apartment rented for between $300 and $500,
when it was vacated, the owner can use the above rates or add
$100 to the previous rent, whichever is greater.
Example 1 -- uses the two year rate only
Tenant A vacates apartment 1 at a rent of $450. He occupied
it for five years and paid a vacancy allowance when he moved
in. Tenant B moved in with a two year lease at a rent of:
$450 + 29%
$450 + $130.50 = $580.50
Example 2 -- uses the . 6% factor in addition to the two year
rate
Tenant A vacates apartment 1 at a rent of $450. He occupied
it for 10 years and paid a vacancy allowance when he moved
in. Tenant B moves in with a 2 year lease at a rent of:
$450 + 29% + 6% (.6x10)
$450 + 35%
$450 + $157.50 = $607.50
Example 3 - uses the $100 factor in addition to the .6%
factor and the 1 year rate.
Tenant A vacates apartment 1 at a rent of $275. He occupied
it for 10 years and paid a vacancy allowance when he moved
in. Tenant B moves in with a 1 year lease at a rent of:
$275 + 27% + 6% (.6 x 10) + $100
$275 + 33% + $100
$275 + $90.75 + $100 = $465.75
Example 4 -- uses the $100 factor instead of the rates
Tenant A vacates apartment 1 at a rent of $310. He occupied
it for 5 years and paid a vacancy allowance when he moved in.
Tenant B moves in with a 1 year lease at a rent of:
$310 + 27%
$310 + $83.70 = $393.70
or
$310 + $100 = $410
$410 is the greater amount and can be used in the Vacancy
Lease.
********************************************
OVERCHARGES:
BIGGER LOOPHOLES FOR OUTLAW LANDLORDS
By Rose Ann Magaldi
from Met Council's Tenant/Inquilino, July 1997
Not long ago, the state Division of Housing and Community
Renewal revised its complaint form for rent overcharges. The new
form made it so burdensome and difficult to complain that many
tenants either were deterred from complaining or had their
complaints rejected for not properly completing the form.
Not satisfied with this, the DHCR and owners teamed up to
persuade the Legislature to change the law in a way that
eliminates many claims of rent overcharges. The new law is
effective immediately and is arguably applicable to all
complaints pending before DHCR and the courts on June 19, 1997.
Before June, the courts had held that tenants had the right to
examine their apartments' complete rental history to obtain
all available evidence of rent overcharges. If an overcharge was
found at any point in time, the current rent was lowered to
eliminate that overcharge, and the tenant was entitled to a
refund of all overcharges collected for the four-year period
preceding the complaint.
The new law specifically prohibits the examination of the
rental history and the calculation of any rent overcharges beyond
the last four years. Now, when a tenant files an overcharge
complaint, DHCR and the courts can not look back any further than
the annual rent-registration statement filed four years earlier.
If the overcharge began before then, the tenant is out of luck.
For example, a tenant who filed a rent overcharge complaint on
July 1, 1997 can look back only to the 1993 registration
statement. An overcharge will be found only if it occurred for
the first time after the 1993 statement was filed. If the
overcharge began in 1992, the tenant's complaint is
dismissed, even if the owner is still charging the excess rent.
This change puts the burden on new tenants to act swiftly and
diligently in pursuing claims of rent overcharges. A new tenant
should obtain the apartment's rental history from the DHCR
and seek the assistance of an attorney or tenant organizer in
analyzing the claim. The courts remain the preferred forum, but
the risk there is that an unsuccessful claim can result in an
award of attorney's fees to the owner. Any tenant who filed
a complaint before June 19 should argue that the old law
continues to apply.
In addition to making it easier for landlords to get away with
rent overcharges, the new law also makes it easier for them to
unlawfully decrease services. In the past, a tenant could receive
both a rent abatement in court under the warranty of habitability
law, based on the owner's failure to provide safe and
livable housing, and a rent reduction from DHCR, based on the
decrease in services required by the Rent Stabilization Law and
the Rent Control Law.
The courts reasoned that the two remedies served different
public policies and therefore complemented one another. Whereas
rent abatements for breaches of the warranty of habitability are
intended to protect individual tenants from owners who fail to
provide services, the DHCR rent reduction is geared toward the
public-policy goal of preserving and maintaining the housing
stock.
The new law supersedes these rulings. Any rent abatement
awarded by the courts under warranty of habitability must be
offset by any rent reduction ordered by DHCR, and vice versa.
Tenants should now carefully analyze their claims before
deciding whether to proceed in Housing Court under a warranty
claim or before DHCR under a decrease-in-services claim. The goal
should be both to obtain compensation for the tenant and to
compel the owner to comply with their duty to provide the tenant
with safe, habitable housing and all services required by law.
Although both these changes in the law widen loopholes for
illegal conduct by owners, tenants should still vigorously pursue
their rights, lest owners view these changes as carte blanche to
ignore the few tenant protections which remain.
------------------
Rose Ann Magaldi is a partner in the law firm of Hartman, Ule,
Rose & Ratner, LLP, and specializes in the protection of
tenant rights under rent regulation.
-----------------------------------------------------------------------
The Tenant Network for Residential Tenants
TenantNet: http://tenant.net
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email:
NYtenants Discussion List: email to and in
the body of the message put "subscribe nytenants".
Information from TenantNet is from experienced non-attorney tenant
activists and is not considered legal advice.
Date: Mon, 18 Aug 1997 21:37:05 -0400
Subject: The Landlord Point of View
THE LANDLORD POINT OF VIEW
The following is an article from the June 25, 1997 issue
of Real Estate Weekly where in large part owners are jumping
for joy. They knew tenants' "victory" was fiction, and the
first paragraph suggesting that Assembly Speaker Sheldon Silver
be named "Man of the Year" puts it all together.
As you read through this article, remember the audience is
landlords and they've deluded themselves into believing
their own propoganda about their own hard times. I only wish.
Parts of the article are just plain sarcastic and contemptible.
The democratic primaries are soon coming up (September 9th)
and there are a few important races we'll look at in the next
few issues.
RENT LAW CHOPS AT CONTROLS
Real Estate Weekly
Wednesday, June 25, 1997
By Lois Weiss
The Associated Builders and Owners in thinking of honoring
Assembly Speaker Sheldon Silver as its Man of the Year,
announced the group's President, Jerome Belson at its
luncheon last week. "They helped the people with existing
housing and in Manhattan, said Belson.
After all, it was the Speaker who handed over a minimum 20
percent bonus or $100 bonus for apartments with low rents
with no work required upon vacancy; added a 1ongevity bonus
for vacancies after long-time tenancies; required the
deposit of rent with the court with no discretion after two
adjournments at the request of the respondent or upon the
30th day after the first appearance by the parties; obtained
rights to move out a small number of holdout tenants in
order to build new housing; limited succession rights to one
generation without rent hikes and jacked up rents to the
next. Each alternate succeeding generation will pay a
vacancy increase, with no end to succession rights.
"We're delighted there was a resolution and our prediction
that a bomb didn't go off at 12:01 was correct," said
William C. Rudin, president of Ruding Management and one of
the city's largest rental owners.
Additionally, Silver agreed that tenants making $250,000 had
just too high an income level for impoverished building
owners to provide them with rent subsidies, and instead,
agreed with the Governor that beginning on January 1, 1998,
only those poorer tenants with incomes of $175,000 or less
should be protected, provided they rent apartments that cost
less than $2,000, affording protection to an additional
10,555 household who make more than that and pay less.
Owners also won the ability to add in the 1/40 MCI for
improvement costs and vacancy allowances to add up to the
$2,000 to get an apartment decontrolled after a vacancy. But
they cannot add in the one- or two-year guidelines to get to
the vacancy rent. They were able to show that the faster
improvement to the housing stock was a good goal, wiping the
City Council's April end-run off the books. The City
Council's notice requirement for newly decontrolled tenants
is also repealed.
"It's gone, finished," said a gleeful Joseph Strasburg,
president of the Rent Stabilization Association (RSA), of
the Council's earlier restriction on getting to $2,000.
A year ago, these items would have been merely wishful
thinking on the part of over-paperworked owners, but now,
thanks to Silver's quiet forcefullness, Senator Joseph
Bruno's zealousness and the Governor's pledge to protect
poor tenants, the new six year rent law will provide a time
of stability, albeit with more regulation and paperwork to
the real estate industry and metro area tenants.
Those tenants who have a $175,000 income or more and rent
apartments for less than $2,000, the politicians probably
agreed, must need the additional money to subsidize their
automobile garage fees -- sometimes more than their rents --
and second homes in other counties and in Connecticut, where
the economies would be severely affected without their
presence.
Unfortunately, the politicians gave scant notice to their
pledges to protect the disabled and senior citizens, who did
not receive any substantial additional benefits or subsidies
under this plan, and can be adversely affected, particularly
if they have incomes over the $175,000 poverty level.
Disabled persons and those 62 years or older do have the
ability to succeed to apartments of near relatives after
only one year of joint occupancy, rather than the two for
other persons.
There were also provisions added that limit the deposit of
rent in court requirements for senior citizens and certain
public assistance recipients.
Owners are also cheering the deposit of rent in court
provisions that are effective in 120 days from the date of
signing, which was June 20th.
Rudin said he is glad to see this, as he has tenants that
have not paid rent for two to five years.
Tenant groups expect to challenge the deposit of rent as a
legal hurdle to justice.
Silver also agreed that after two adjournments requested by
the respondent and within 30 days of the first appearance by
the parties, the tenant has to deposit rent in court, and
five days after a judgement is issued, no orders to show
cause to stay the issuance or execution of any warrant of
eviction, or stay the re-letting of the premises, can be
obtained without depositing rent.
But they also expect judges to prompt tenants into saying
the rent is disputed, thereby circumventing the rule that
would provide owners with 12 units or less the ability to
get their hands on the rent money to keep the oil company
and bankers at bay.
Bankers are cheering, however, because DHCR has been ordered
to contract with a financial institution that will be in
charge of certain deposited rents.
That still won't help owner Dennis Guidons, who owns a 14-
unit building with two longtime tenants who haven't paid
rent in four months. One is waiting for a tax refund, he
gave the other a letter to bring to social services for
help.
"The last thing I try to do is bring a tenant to court, he
said. "The amount you pay in legal fees isn't worth it. It's
a business I am running. The tenants are my customers and
without them I have nothing. Just let it be fair."
Small owners also gained no relief from the regulatory
system that is crushing them, said Roberta Bernstein,
president of the Small Property Owners of New York (SPONY),
who said her members "feel like they are in servitude to
DHCR," and were hoping for vacancy decontrol to get out from
under the trick paperwork.
When you talk about a vacancy increase of 20 percent it
sounds great, said R. Bonnie Haber, president of the
Community Housing Improvement Program (CHIP), but 90 percent
of my apartments are already at market rents outside oof
Manhattan. They actually made the system worse because it's
adding additional bureaucratic paperwork." Said another
owner who asked not to be quoted by name, "We're calling
this 'partial birth vacancy.' This is an abomination.
One relief for those members will be the provision that
effective immediately and covering all outstanding bills,
the $10 annual registration fee will be merely a lien on the
building, and not become an issue for a rollbick of rent.
Owners are also expecting the Rent Guidelines Board (RGB) to
maintain the 5 percent vacancy allowance as proposed for
leases beginning October 1, 1997, Strasburg says the new
bonus is on top of whatever the RGB permits.
Said Dan Margulies, executive director of CHIP, founded to
chip away at the rent laws, "It's important that the
legislature clearly anticipated this as a bonus above
existing vacancy allowances and the language refers to the
ability to take both." This is critical, he says, because
the vacancy allowance is used in determining sub-lease
increases.
The legislators, insiders say, were actually confused by the
prior complicated laws that they had drafted, and actually
believed owners were getting a 16 percent vacancy allowance
based on the current 7 percent raise for the two-year lease
plus 9 percent vacancy allowance that will end on September
30, 1997, and assumed they were adding on an additional 20
percent to the 16 percent for the duration. Perhaps they
were expecting the joy of a $36 raise on an apartment
renting for $100 to induce owners to be writing more
donation checks to their campaign coffers.
That's when they came up with a very complicated system
retroactive to January 15, 1997. There will be a minimum
$100 rise or 20 percent on vacancy for two-year leases on
apartments renting under $300, although the politicians know
it costs more than that to operate a unit without a
mortgage. If the previous rent was between $300 and $500,
the bonus is 20 percent or $100, whichever is greater. If
the lease is for one year, the vacancy bonus is 20 percent,
minus the difference between the one- and two-year
guidelines increases.
If the tenant was in place without a vacancy increase for
more than eight years, an additional .6 percent is added for
each year since the last vacancy allowance.
Edward Hochman, the chairman of the Rent Guidelines Board
and an attorney, quipped "Why not a flat 25 percent vacancy
increase and we could all go home."
The current RGB proposal for a two percent raise on a one-
year lease and a four percent raise on a two-year lease with
a five percent vacancy rate were to be approved unless the
tenant advocates created havoc.
Mayor Rudolph Giuliani, who has always been in favor of
keeping small business in New York City and reducing
paperwork and regulations, hasn't yet replaced the second
owner member on the RGB, so they were to be still short a
vote this past Monday.
Harold A. Lubell of Robinson Silverman Peirce Aronsohn
Berman, the remaining owner member, said the owners had
higher expectations and thought they would get more
than they did out of the rent negotiations. He noted
cheerfully that for a full week, there were no rent
stabilization laws in the State for the first time in 50
years.
Attorney Martin J. Heistein, a partner with Belkin Burden
Wenig & Goldman, said "We've all heard the broad parameters,
but what's critical is to read the actual bill and carefully
analyze what has been decided."
Some of the other items that were included in the details
include: Language that makes it clear that Major Capital
Improvement (MCI) increases can be granted without meeting
hardship/fair return standards; and, effective immediately,
Division of Housing and Commununity Renewal (DHCR) rent
reductions and court ordered abatements for the same service
conditions shall be offset against each other.
On overcharge omplaints, effective immediately, the four-
year standard of limitation is reinforced in the bill and no
rent or service of registration can be challenged four years
after the filing of an annual registration.
The legislators also put off for 30 days the provision
creating a Class E felony for harrssment by an owner who,
with the intent to cause a tenant to vacate, intentionally
or recklessly causes a tenant or other lawful occupant a
physical injury. The owner can also face civil penalties
between $1,000 and $5,000 for each offence.
Margulies says the definition is important because many
harassment complaints have stemmed simply from tenants
receiving a notice that their rent is being raised.
Michael Schill, a Professor of Law and Urban Planning
Director at the New York University School of Law Center for
Real Estate and Urban Policy, said even with the bonuses,
many apartments will not reach market rates.
"There's a little bit of a perverse incentive built into
this," he said. The unit goes back under regulation after
the bonus, so if the rent is so close to market that the 20
percent bonus takes the rent above the market, the owner may
not get it or may not be able to raise the rent again for a
while.
"The owner will say to himself, 'I will be stuck with this
tenant for a long time, so I want to charge a high enough
rent so that in the beginning they will pay a premium,'"
Schill explained. Tenants who have the ability to pay,
Schill said, will see there is a premium and realize they
will be protected from rent increases and amortize that
premium into the future. "So people who move a lot will
subsidize those who don't," he explained.
When it comes to constructing more affordable housing -
another promise the politicians forgot - Belson says
builders will he looking to other jurisdictions that have
open and inviting arms to make their investments.
Owners will also begin thinking about cooping or condo-izing
rental buildings, both of which need merely 15 percent of
the unit owners to agree. Co-op aren't an option he's
looking at, said Francis Greenburger, who still owns 20
rental buildings. He says these buildings have significant
retail and he wouldn't want "the tail wagging the dog."
"There is still a stock of housing that would be
appropriate," he said of the general city stock. "My feeling
is now that it's 10 years later, owners will look up and
say, 'Now, what do I do?' And they will see the rent laws
are not as favorable, and we're in here now for another six
years and say 'Maybe it's time I co-op my building.' That's
not going to be 100 percent of the owners, but obviously if
the laws were more liberal they would have an ability to
realize the value in a rental."
Greenburg said they are looking afresh at buying buildings
because some people who decided not to co-op will decide
they want to sell and let someone else do it, so we will
consider buying."
"We did cond-op in some buildings, but in most, the retail
is so significant we'd just leave it,' he said. "I don't
think my attitude has changed."
Still, the developer is active in Lower Manhattan, where he
is buying former office and loft buildings for conversion to
rental units and to condos.
Ironically, Greenburger noted, with no vacancy decontrol,
which would have soon leveled off rents, and the lack of an
incentive to build, the supply of housing will dwindle,
driving rents up in certain locations.
As the impact of the laws on their apartments was being
examined, owners were toasting but not roasting the
politicians.
"Expectations had been raised, and so in any other year this
would be called thw most significant change to the rent
regulation system ever," said Strasburg. "'There were.
very critical victories."
-----------------------------------------------------------------------
The Tenant Network for Residential Tenants
TenantNet: http://tenant.net
NYTenants Interactive: http://nytenant.net
NYTenants Express: http://members.aol.com/nytenant
email:
NYtenants Discussion List: email to and in
the body of the message put "subscribe nytenants".
Information from TenantNet is from experienced non-attorney tenant
activists and is not considered legal advice.
Date: Mon, 25 Aug 1997 00:47:05 -0400
Subject: The New Rent Law on Rent Deposits, Harassment & Succession
Before we get to some of the political races in the upcoming
September 9th Democratic Primary, it's good to finish up on the
horrific provisions of "Rent Regulation Reform Act of 1997."
All three of these articles appeared in the July issue of Met Council's
Tenant/Inquilino newspaper and are written by experienced tenant
attorneys. Along with the previous articles covering Vacancy Decontrol
and Overcharges, we hope you're getting the picture how tenants
are being treated in this town (and how it will get a lot worse).
We hope you keep this in mind regarding some of the critical
elections coming up. All those pink hats shouting "I'm a tenant
and I vote" are meaningless unless you get off your duff and
into the streets to get the right candidates in office. More on
that shortly.
In this issue:
1. Rent Deposits: Closing the Courthouse Door to Tenants
2. Harassment: Real Incentives, Phony Penalties
3. Succession: No Nieces Need Apply?
Rent Deposits: Closing the Courthouse Door to Tenants
by Seth A. Miller, Esq.
One of the most odious parts of the new rent law is the provision
requiring tenants in Housing Court to deposit their rent with the
court--or be evicted without getting a trial. This "rent deposit" law
effectively shuts the courthouse door on the rights of tenants.
The new law establishes an inflexible mechanism under which a tenant
must deposit "the rent" into court the second time they ask for "an
adjournment" of the case (in other words, more time to prepare for
trial, to obtain a lawyer, to obtain witnesses, or to put together
money to pay) or 30 days after the first time that parties appear in
court. It requires the deposit of "the rent," even though the amount
of "the rent" is the very issue that is supposed to be determined
after hearing both sides of the case.
Few Exceptions
The only exception to the rent-deposit requirement is where the
tenant establishes "at an immediate hearing" that they have one of
four very limited defenses: 1) that the case was not brought by their
actual landlord; 2) that they have had to leave the premises due to
conditions so bad that they can be described as an "actual eviction,"
"constructive eviction," or "actual partial eviction"; 3) that the
city Department of Social Services, if it is the party that is
required to pay the rent, has refused to pay the rent based on the
deteriorated condition of the building; or 4) that the court "lacks
jurisdiction"--if the tenant has not been properly served or the case
does not belong in Housing Court.
There are some allowances for tenants on limited incomes, but the
tenant must still generally make a deposit. For example, a tenant in
a SCRIE program must deposit the portion of the rent they pay
themselves; a tenant on public assistance must deposit an amount
equal to the shelter allowance portion of their grant; and a tenant
receiving SSI must deposit one-third of their monthly check. If the
rent is paid by two-party check, they receive relief under the
Jiggetts case, or their rent is directly paid to the landlord, they
will not be required to deposit amounts directly paid by the
Department of Social Services.
In buildings with 12 units or less, the new law is particularly
harsh. If there is an amount of rent that is not in dispute, that
amount must be paid to the landlord. The amount that is in dispute
must be deposited in court. What this means is that, unlike in larger
buildings, the amount to be deposited is not merely "the rent" as
determined at an immediate hearing. Instead, it is any amount that
the landlord decides to claim. The new law gives landlords of small
buildings (who may not be "small landlords," but owners of many small
buildings) an open invitation to lie. Under the law's literal terms,
a landlord who picks a rent figure out of the clear blue sky can sue
the tenant for that amount, even if it has no relationship to the
rent required by the lease or under the rent laws, and the tenant
must deposit the full amount or be evicted.
Eviction Without Trial
If a tenant does not make the initial deposit, the law
requires that the landlord be granted possession of the
apartment. The tenant may raise his or her side of the story in a
separate action at a later date, but this is a meaningless right when
they have already been evicted without being heard. If the tenant
makes the initial deposit, but is late with any later deposit, the
landlord can obtain an "immediate trial."
The new law is a massive assault on the right of tenants to make
claims against their landlords. Even tenants who have defenses that
allow them not to pay any rent at all, such as defenses under the
Loft Law or defenses that come from living in illegal apartments,
will still have to pay.
The new law also completely eliminates tenants' well-established
rights to get an "Order to Show Cause" to reopen their case or
dispute court orders to pay rent. Now, if a tenant in a nonpayment
proceeding has appeared in court and has had a judgment entered
against him or her, they may not obtain an Order to Show Cause to
stop an eviction unless they pay the full amount that has been
awarded to the landlord. In other words, under the new law the
tenants are to be evicted first; and only afterward (if they can
afford further legal proceedings while dealing with being newly
homeless) can they obtain any opportunity to tell their side of the
story.
The rent-deposit law goes into effect on October 14. It will probably
be challenged as a violation of tenants' rights to due process of law
and of violation of judges' constitutional right to exercise
discretion in the interests of justice. Until that lawsuit succeeds,
however, tenants' right to obtain repairs or to recover overcharges
they have paid will exist more on paper than in reality.
Seth A. Miller is an attorney who specializes in
representing tenants and tenants' groups.
****************************************************
Harassment: Real Incentives, Phony Penalties
by Anne Jaffe
The anti-harassment provisions in the new rent law add very
little to tenant-protection laws already on the books and are
unlikely to be enforced. In light of the strong incentives to harass
tenants that the law's vacancy increases create, they are a joke.
The new law makes harassing rent-regulated tenants a felony--but only
if the landlord causes the tenant (or a third person) physical
injury, if it can be proved he injured her to cause her to vacate her
home, and if it can be proved he intended to cause, or recklessly
caused, the injury. Intentionally or recklessly injuring anyone else
is already a misdemeanor. Now, if you can prove a landlord injured a
tenant specifically to cause her to move, the landlord can be
sentenced to up to four years in prison (or be given probation).
What are the chances that landlords will be prosecuted under this
provision? When the idea was floated during negotiations over the new
law, the district attorneys of Brooklyn, Manhattan, and the Queens
opposed it as unworkable. Even if the cops arrest the landlord and
the DA wants to prosecute, how will you prove intent unless the
landlord says "I want you out of here" while he punches you? And what
about physical injury that isn't obviously intentional or reckless,
like allowing the ceiling to go unrepaired until it falls down on the
tenant's head?
The second new harassment provision increases the amount which
the DHCR can fine a landlord it finds guilty of harassment. Both
the rent-control and rent-stabilization laws have long provided
penalties for harassment after a landlord shows an intent to
empty out a building. The tenants can, in theory, get him fined
if he fails to keep the building secure, decreases services, or
interferes with their peace and comfort. The fines are now $1,000 to
$5,000 for each element of harassment.
The problem is that the DHCR prosecutes very few harassment
complaints. Its Enforcement Unit immediately rejects most tenants'
complaints. If the complaint is accepted, then a conference is held
to try to get the landlord to behave voluntarily. The agency only
holds a hearing to decide if the landlord should be fined in a tiny
number of cases. Even then, its pro-landlord policy results in few
fines.
Suppose your complaint involves so many tenants and such clear-cut
harassment that the DHCR fines the landlord. If he is trying to empty
the building in order to demolish it, renovate it, or co-op it, and
stands to make hundreds of thousands of dollars doing so, it will
hardly inhibit harassment because now he can be fined $20,000 instead
of $10,000.
Demolition Easier
The law also includes a special gift to developers: It will now be
easier for landlords to get the last rent-controlled tenants out of
buildings they want to demolish or remodel. The law used to require
that the DHCR could not let rent-controlled tenants be evicted for
these purposes unless the owner could prove he was going to build 20
percent more housing, and that he could not make a fair rate of
return (8.5 percent) on the building (the Sound Housing Law, passed
when tenants were on the offensive). Now, these requirements don't
apply if the building has only three or fewer occupied units and
these constitute 10 percent or less of the total units in the
building, or if it contains 10 or fewer units and only one is
occupied. The landlord has to give the tenants the same relocation
benefits as stabilized tenants, but he can probably get them out.
Only Michael Finnegan of the Daily News found it scandalous
that this little paragraph was put in to allow Harry Macklowe to
empty two Midtown buildings at once. Apparently, the landlord in the
demolition case in which I have represented the tenants for 16 years
didn't pay the Republican legislators enough to make the numbers a
little more favorable--my clients are safe for a while, until a few
more die.
There is no way to know how many other tenants may be affected by
this change, but now more than ever, tenants in this situation
have to stick together to the end. Anyone wishing to hold out
against eviction may be there when there are too few tenants left
to be protected by the law.
Anne Jaffe is a tenant attorney in private practice with
Lisa S. Ottley, a law graduate.
****************************************************
Succession: No Nieces Need Apply?
By David Frazer
"Succession rights" is shorthand for the provisions of the
rent-stabilization and rent-control laws which, in certain
circumstances, permit family members of tenants who die or
permanently vacate their apartments to take over the apartment or
succeed to the tenancy in their own name.
The "Rent Regulation Reform [sic] Act of 1997" restricts these
succession rights in two important ways: It reduces the categories of
family members who may take over an apartment, and it allows massive
vacancy increases if an apartment is passed on more than once.
Family Members
Under prior law, a broad range of family members could succeed to a
tenancy, provided they occupied the apartment as their primary
residence for at least two years immediately before the "tenant of
record" died or moved (in certain instances that period of may be
less). The new law removes aunts, uncles, nieces and nephews from the
list of relatives eligible to take over an apartment, limiting
succession to parents, children, stepchildren, step-parents, in-laws,
spouses, siblings, grandparents, and grandchildren.
Despite repeated threats from State Senate Majority Leader Joseph
Bruno, the new law preserves the right of "non-traditional family"
members, such as gay and lesbian partners, unmarried couples, or
other people who can show the emotional and financial interdependence
of a family relationship.
Rent Increases
Under the old law, when a family member succeeded to a tenancy, she
or he assumed the lease at the same base rent and was not charged any
extra increases as a new tenant. This rule applied regardless of the
number of times different family members succeeded to the tenancy.
The new law limits this rule to a single succeeding tenant. If this
new tenant then passes the apartment on to another family member, the
next family member can keep the apartment but must pay a hefty rent
increase. That tenant will be subject to the 20% vacancy increase,
plus whatever other increases the landlord could charge if the
apartment were vacant. This will dramatically increase rents for the
second generation of succeeding tenants.
Unresolved Questions
The succession-rights amendments raise at least two unresolved legal
questions. First, are the changes retroactive? What would happen, for
instance, if a niece lived together with her aunt, the tenant of
record, for more than two years and the aunt died on June 15, 1997,
before the new law went into effect? Under current law, a succeeding
family member's rights "vest" or become effective on the date the
tenant dies or moves. Thus, it seems likely--but is far from
certain--that a court would consider the niece's rights under the old
law and rule in her favor.
Second, can the newly excluded family members argue that they are
entitled to succession rights as non-traditional family members? What
if the aunt from the prior example dies on Oct. 16, after the new law
is in effect, but had cared for her niece for many years as if she
were her daughter? The amendments, at first blush, would seem to
exclude the niece from any succession rights. But, if the niece could
show the emotional and financial interdependence necessary to prove a
non-traditional family relationship, she might be able to take over
the lease.
Current law recognizes that unrelated persons who are cared for by
the tenants as children can succeed under the non-traditional
category. If persons wholly unrelated by blood can be non-traditional
family members, there does not seem to be any valid reason to exclude
nieces and nephews. But, as with many elements of the new law, we
must await the inevitable court battles to learn the final answer.
David Frazer is of counsel to the tenant law firm of
Himmelstein, McConnell, Gribben, & Donoghue.
-----------------------------------------------------------------------
The Tenant Network for Residential Tenants
TenantNet: http://tenant.net
NYTenants Interactive: http://nytenant.net
NYTenants Express: http://members.aol.com/nytenant
email:
NYtenants Discussion List: email to and in
the body of the message put "subscribe nytenants".
Information from TenantNet is from experienced non-attorney tenant
activists and is not considered legal advice.
Date: Wed, 27 Aug 1997 13:05:25 -0400
Subject: Tenants Need Margarita Lopez in New York City Council
MARGARITA LOPEZ FOR NEW YORK CITY COUNCIL
After the last six-month Rent War roller coaster ride in Albany, most
rational people should be tired and drained of politics. But someone
deemed that the Democratic Party would have a primary in early September.
So this year, on September 9th, there are primaries for the Mayor,
the Manhattan Borough President and the New York City Council.
Of the latter, one race in particular, on Manhattan's Lower East Side
and Gramercy area (up to 35th Street) is an open seat and hotly
contested -- and VERY CRITICAL FOR TENANTS OF ALL AREAS OF NYC.
EVEN IF YOU LIVE IN OTHER PARTS OF TOWN, it's important that you call
all your friends on the Lower East Side. Get them to vote for MARGARITA
LOPEZ, get them to leaflet their building with Lopez flyers, get their
tenant associations involved, or all three. And if you don't know
anyone on the Lower East Side, consider it a daytrip to a foreign
country. Get off your duff and down to Lopez campaign headquarters.
(see below for details)
Four years from now, term limits dictates that most of today's City
Council will go away. Any councilperson elected this year can remain
and most likely will end up in the leadership or as Speaker of the
new City Council which takes office in 2001.
IT'S IMPORTANT THIS SEAT GETS OCCUPIED BY A TENANT ADVOCATE. Antonio
Pagan, notorious friend of landlords and a member of the Housing and
Buildings Committee, is vacating after two terms to run for Borough
President, so the seat is up for grabs and can have a significant
impact on NYC housing policy and on what happens to Rent Control and
Rent Stabilization in the next six years. NYC Council will need to
renew the rent laws in 2000, only three years away and if people like
Pagan are still in power, you might consider moving to Idaho.
The opposition candidate, Judy Rapfogel (whose husband has bundled "soft
money" for Rudy Guiliani) has been annointed by her boss, Sheldon Silver,
to be the "Heir of Pagan" and potentially "Heir of Vallone" and represents
the worst in "insider and sellout" NYC politics. She is spending lots
of money misrepresenting her background and slave ties to the corrupt
machine. It will take tenant involvement from all over to overcome
this Tammany Hall con job.
MARGARITA LOPEZ is a longtime Lower East Side housing and tenant
advocate -- Female Democratic Party District Leader for the
63rd Assembly District, Part B, Margarita has organized thousands
of tenants against attempts to deregulate public and private
housing, and has helped organize residents to prevent the sale
of neighborhood cultural community centers.
Margarita worked for ten years as Team Leader, engaged in outreach
work at Project Reachout, the oldest outreach program in New York
State, which helps the homeless mentally ill find homes, clothes,
and jobs. Prior to that, she developed the first outreach program
for the homeless mentally ill at the Bowery Residents Committee.
Her work with the homeless mentally ill population was documented in
a film produced by PBS, "The Broken Mind", as well as by the New
York Times, National Geographic and numerous other news and
television programs.
>From 1982 to 1996, Margarita served as a member of Lower Manhattan's
Community Board No. 3.
AS A TENANT ORGANIZER FOR ACTION FOR PROGRESS and as
CHAIR OF THE JOINT PLANNING COUNCIL, Margarita helped
create thousands of low and moderate income apartments
in New York.
o She is a founding member of the People's Federal Credit
Union
o Led the fights to save NENA Health Clinic and the
neighborhood family planning clinic
o Organized opposition to the Brooklyn Navy Yard
Incinerator
o Advocated for neighborhood AIDS services.
o Helped build grassroots community organizations
as a member of North Star Foundations funding board.
Margarita has fought for a multi-racial/multi-ethnic agenda
in New York City and she received THE FANNIE LOU HAMER AWARD
for her work toward racial and women's equality, and
interracial, intercultural and inter-ethnic unity.
Margarita has been a board member of the Astrea Lesbian
Action Foundation; helped form the Puerto Rican
Initiative to Develop Empowerment(PRIDE)a gay and
lesbian political organization; and was AWARDED THE
CHARLES A. REVSON FELLOWSHIP BY COLUMBIA UNIVERSITY, in
1994, for her distinguished contribution to the
betterment of New York City.
She was invited by the MACARTHUR FOUNDATION to serve on
the Advisory Committee on Mental Illness and the Law,
and has been associated with the National Resource
Center on Homelessness and Mental Illness. She also
served as a consultant for the federal Office of
Programs for the Homeless Mentally Ill and has
contributed to publications dedicated to the work with
this population.
Margarita was born and raised in Puerto Rico, where she
began her political and social activism by founding
several of the first feminist and gay and lesbian
organizations in the 1970's.
--------------------------
If you're in NYC Council District #2 and a registered Democrat, you
can vote for Margarita Lopez. It includes most of the Lower East Side,
the East Village, much of Gramercy.
The Eastern boundary is the East River
The Western boundary is 5th Ave.
The Northern boundary is 35th Street.
And Southward it goes all the way to the Vladeck Housing Projects
past Grand Street.
CONTACT THE LOPEZ campaign at:
Friends of Margarita López
33 W. 14th Street (bet. 5th and 6th)
807-7666
MARGARITA LOPEZ
Democratic Candidate for New York City Council -- District 2
Democratic Primary, Tuesday September 9, 1997
*********************************************************
-----------------------------------------------------------------------
The Tenant Network for Residential Tenants
TenantNet: http://tenant.net
NYTenants Interactive: http://nytenant.net
NYTenants Express: http://members.aol.com/nytenant
email:
NYtenants Discussion List: email to and in
the body of the message put "subscribe nytenants".
Information from TenantNet is from experienced non-attorney tenant
activists and is not considered legal advice.
Date: Sun, 31 Aug 1997 19:11:21 -0400
Subject: Manhattan BP candidates on Hell's Kitchen Rezoning
MANHATTAN BOROUGH PRESIDENT CANDIDATES RELEASE
STATEMENTS ON PROPOSED HELL'S KITCHEN/CLINTON REZONING
Within the next few months, the City Planning Commission is
expected to release a zoning proposal that would allow
massive skyscrapers to be built on the West side of 8th Avenue,
creating a "wall" of structures on the scale of World Wide Plaza
-- 40 or 50 stories in height. This complex plan would involve
the transfer of air rights from Broadway theatres across 8th
Avenue and creation of a fund for the production of Broadway
plays. The impact on Hell's Kitchen would be immeasureable.
You can read more on this issue on Hell's Kitchen Online at
http://hellskitchen.net
We asked the major candidates for Manhattan Borough President
for their
comments on this proposed rezoning of Eighth Avenue.
All three responded with the enclosed statements (in no
particular order): Deborah Glick is a NY State Assemblymember
from Lower Manhattan, and both C. Virginia Fields and Adam Clayton
Powell are members of New York City Council representing parts of
Upper Manhattan and Harlem.
You will have the opportunity to vote for one of these candidates
in the Democratic Primary on September 9th. While all three
statements are encouraging, we ask you to look deeper at all
three candidates: what is their background, what have they
done (or not done) while in office, do they take real estate
money and are they part of the "machine".
******************************************
Statement from Deborah Glick
There have been reports that the Department of City
planning plans to re-zone Eighth Avenue. This proposal is
expected to be released later this Fall and to be enacted
by next year. These plans would allow the owners of 25
landmarked theaters in the Theater District to transfer
their "air rights" -- across 8th Avenue.
The Hell's Kitchen/Clinton Neighborhood is a mixed-income
residential neighborhood, racially and ethnically mixed. It
is low-rise in nature and includes many small businesses.
In 1974 the City created the Special Clinton District which
protects the area from overdevelopment and preserves this
livable neighborhood. Residents of Hell's Kitchen have
worked collaboratively with local non-profits and the City
to retain and create affordable housing. An important
component of the Special Clinton District is a provision
that grants building density bonuses in return for
developing inclusionary housing.
At the present time the Theater District is already
experiencing renewed development. This renewal has occurred
without any new zoning. Before embarking on any rezoning
proposal we must evaluate the current growth and needs of
the Theater District. Encouraging growth in this district,
should not negatively impact on the Hell's Kitchen
Neighborhood. We must take into account the existing
infrastructure and the ability to absorb the density that
would be created by allowing development of buildings that
are 40 stories high. In addition, we must evaluate the
shadows that would be cast by such development.
We must preserve the low-rise character of Hell's Kitchen
and affordable nature of the housing in this community.
With reports of tenant harassment already on the rise, I
concur with the residents of Hell's Kitchen who express
concern that this proposal may result in dislocation in the
community.
Therefore, I have serious reservations regarding this
approach. As Manhattan Borough President I will work with
the local community and housing activists to ensure that
Hell's Kitchen remains a livable and vibrant neighborhood.
******************************************
Statement from C. Virginia Fields
I am very concerned about the effect the proposed Eighth
Avenue rezoning may have on the Clinton/Hell's Kitchen
neighborhood. The people who live and work in this area
were given little input into the plan. Currently, this
area enjoys a unique residential character, with low rise
buildings and a population of both mixed income and mixed
ethnicity. It has been experiencing a revival of late,
which would be greatly altered by the addition of luxury
high rise buildings. The low to middle income housing in
this area is very important to the borough of Manhattan and
the city as a whole. The prospect of luxury housing alone
can drive up land values and lead to tenant displacement
and even harassment by landlords that wish to raise their
rents.
The proposed rezoning would extend the Broadway Theatre
District from the east to the west side of 8th Avenue, thus
making it overlap with the Special Clinton District, which
was created to protect and preserve the historical
character of one of New York City's oldest residential
neighborhoods. The Special Clinton District requires
"inclusionary," or mixed income, housing for any
development that exceeds the prescribed Floor Area Ratio
(FAR) in the District. The rezoning plan would raise the
FAR, allowing 40 to 50 story buildings to be built without
requiring them to be mixed income. This is the most
problematic aspect of the plan, as it will drastically
alter the character of this neighborhood, that which the
Special Clinton District was specifically designed to
protect.
While it is understandable that theatre industry wishes to
benefit from the much needed capital this rezoning would
bring to it, I feel that this gain would be at the expense
of, and to the detriment of, the community that already
resides in this area. While I do not dispute the merit of
a "theater preservation fund" created to receive the
proceeds of the transfer of air rights from the landmark
theaters to developers, I find it troublesome that one
residential neighborhood would be forced to bear the
negative fallout of this effort.
Clinton/Hell's Kitchen residents are understandably
concerned about this intrusion into their neighborhood.
Many fear that allowing Broadway theater owners to sell
their air rights to developers on the west side of the
avenue would compete with one of the provision of the
Special District that grants building density bonuses in
return for developing affordable housing in the Clinton
district and elsewhere. While the Department of City
Planning has said that all provisions of the District will
remain in place, it is hard to believe that this district
will not suffer in many ways from the rezoning. As this
process goes forward, we must be vigilant to make sure that
the goals and past accomplishments of Clinton Special
District are not undermined.
******************************************
Statement from Adam Clayton Powell
The Hell's Kitchen/Clinton district is suffering from success:
the low-rise area, once a neighborhood of tenements filled
with successive immigrant groups making their way in New York,
is now a growing urban middle-income neighborhood in the
lengthening shadow of a revitalized Times Square.
No wonder the property barons are eyeing the air-rights of the area.
As Manhattan Borough President, I will take the lead of the local
Community Planning Board in mitigating the scope and effect of
the re-zoning proposal on the neighborhood. I will, however, oppose
any effort to drastically change the character of a neighborhood,
particularly as it lessons the opportunity for low and middle
income people to enjoy a decent quality-of-life.
The prospect of looming shadows from newly build sky-scrapers is
frightening. Furthermore, the attitude that the Theater District
has a right of "eminent domain" i.e., that the importance of the
area to the city's economy gives it carte blanche to stretch out
in all directions, is totally misguided.
My support of Community Planning Board decisions is based on respect
for the hardworking individuals who volunteer their time to maintain
and improve their community. They are closest to the issue, live it
day in and day out, and will suffer the consequences of their decisions.
That's why the Community Board must be an integral part of the
decision-making process in planning neighborhoods.
The monopoly money-style trading of air-rights is also troubling,
particularly as it pertains to inclusionary housing, which can be built
in other neighborhoods, leaving massive "luxury" buildings in the
midst of a middle-income neighborhood and shifting the building
of middle income housing away from the neighborhood where it
really belongs.
-----------------------------------------------------------------------
The Tenant Network for Residential Tenants
TenantNet: http://tenant.net
NYTenants Interactive: http://nytenant.net
NYTenants Express: http://members.aol.com/nytenant
email:
NYtenants Discussion List: email to and in
the body of the message put "subscribe nytenants".
Information from TenantNet is from experienced non-attorney tenant
activists and is not considered legal advice.
|
