Joined: 21 Jan 2002
Location: New York City
|Posted: Sun Apr 22, 2007 12:05 pm Post subject: Tenants Rights in case of a fire
|Here's a compilation of responses on what can or should be done in case of a fire. This comes from a variety of people, some tenant lawyers, and originally appeared on this forum in this thread
Here are the responses:
They have to notify DHCR. The tenant pays $1 a month until the apartment is habitable again and they are able to return to their apartment. The tenant should take pictures of all damage - clothes, furniture, apartment etc. They should also get a copy of the fire report.
Problem is if the tenant does not have private apartment insurance their personal items are not covered by the landlords insurance policy. The landlord is only liable for the repair of the apartment and the building. Maybe you can make a case against the LL if the FD determines that the fire was due to his negligence.
The tenants might be able to file an HP action for repairs due to the fire and also file a rent reduction request to DHCR because of the fire. Thye may need a FDNY report on the fire but it wouldn't hurt.
See DHCR Operational Bulletin 95-2. (but there may need to be a vacate order)
IV. "Constructive Occupancy" by Rent Stabilized Tenants in
Substantially Rehabilitated Buildings
"In certain cases, because of the existence of hazardous conditions in their rent stabilized housing accommodations, e.g., fire damage, some rent stabilized tenants may be ordered by a governmental agency to vacate the housing accommodation. Such vacate order may create a "constructive occupancy," providing for payment by the tenant of a nominal rental amount such as $1.00 per month, while the vacate order is in effect, and permitting the tenant to resume occupancy without interruption of his or her rent stabilized status, upon restoration of the housing accommodation to a habitable condition. Where the building has been substantially rehabilitated, constructive occupancy will have the effect of excepting the housing accommodation from exemption from rent regulation based upon such rehabilitation.
"However, the exemption from rent regulation based upon substantial rehabilitation will apply to all housing accommodations in the building which are not "constructively occupied" or actually occupied by a previously rent regulated tenant. In addition, the exemption will also apply to a constructively occupied housing] accommodation if the returning tenant subsequently vacates, or if the tenant who is entitled to return pursuant to court or DHCR order chooses not to do so."
Tenants should immediately file RA-81 form with DHCR to reduce rent to $1 - no prior notice need be given to landlord in case of vacancy due to fire according to the form. Tenant should also request expedited proceedings - see DHCR Fact Sheet #34 (fire damage or other conditions amounting to constructive eviction "may" warrant expedited service).
It helps to write, in red ink, FIRE -- PLEASE EXPEDITE on the RA-81 form.
If the Ts can obtain a photocopy of a vacate order and attach that to the form, it is helpful. Take the vacate order(s) off the doors, photocopy it/them, then put it/them back on the door(s).
Also, if the Ts can obtain a copy of the fire marshal report and attach that, it can be helpful. This is a bit cumbersome and takes some time, you have to send a letter to the NYC Fire Department at MetroTech in Brooklyn
(cannot remember the precise office) and enclose 25 cents and a SASE, and eventually they will mail the report. Rather than delay filing the RA-81, the fire marshal report can be submitted to DHCR later.
I agree that the DHCR filing is a critical first step. Next steps are (2) get an expert in, if possible, to estimate the amount of time it would take for restoration. (3) Bring an HP, whether or not you have access to an expert. If you do, try to get your expert's opinion accepted as the deadline for restoration of the tenants to possession. If not, then get a plain vanilla repair order, ASAP. (4) Deal last with the property damages issues.
Best practice is to make an inventory of damaged property, photograph the damaged property, document if possible the value of the damaged property, keep tabs on any relocation expenses, including meals, and write a demand letter seeking reimbursement that states that damages are still accruing, that contains the magic words "refer this matter to your insurer" and that says when you will dispose of the damaged property if the insurer has not inspected it. Although it is not top priority until after the apartment is restored, a negligence lawyer should be used for any claim over 5K (more than a small claim), and the lawsuit should wait until after the HP resolves (so findings of contempt, other bad conduct by landlord can be included).
File an HP case ASAP! This will put the LL on undisputable notice that the tenant wants the apt back, and even if the court allows a lengthy period for repairs, you will still have an enforceable court order that entitles your client to be restored to possession.
File a decrease in services application with DHCR, asking the rent to be set at $1 (is there an HPD vacate order?) DHCR will set the rent at $1 and the tenant should pay that amount each month and keep the landlord informed as to where the landlord should contact the tenant when the building is again ready for occupancy.
It helps to write in red ink "FIRE -- PLEASE EXPEDITE" on the front of the services/rent decrease application filed with DHCR.
If the tenants can get a copy of the Fire Marshal's report from FDNY, they can attach that to the application. Same thing for a copy of a vacate order.
Once DHCR reduces the rent to one dollar per month (which should be retroactive to the date of the fire) it is important that the tenants send the landlord a check for one dollar each month. I advise tenants to
accompany this with a letter stating that the check is for rent for the month of ____, and send it certified mail, return receipt requested. If a group of tenants, there can be one letter for several apartments, enclosing each tenant's check, signed by a tenant representative.
This should be done every month whether the LL cashes the checks or not.
The LL will likely continue to send monthly rent bills for the pre-fire rent stabilized rent, and by the time the matter is resolved the tenants will "owe" thousands of dollars of back rent. But these rent demands have no legal power and should be ignored.
Because the tenants are out of the building, Ed's suggestion of filing an HP proceeding should be pursued without delay. LLs often try to avoid allowing the original tenants to move back in. And it gives the tenants some leverage if the LL tries to delay repairing the fire damage in the hope that the Ts will get discouraged and give up. In some cases LLs want to get the work done quickly, in others they try to drag it out for months or even years.
If the Ts are in different locations, they should make sure they all know each other's phone numbers and addresses, and that if one of them relocates temporarily the others need to know the new contact information.
Once repairs are completed the LL must file a rent restoration application with DHCR in order to restore the rent back to the stabilized rent.
We worked with many fire lock out families in the Lower East Side. I had followed the same process with the tenants that I worked with and we were successful in returning to their rehabilitated homes in within six to nine months. Filing HP actions and DHCR rent reduction applications were the keys to returning tenants to their homes quickly.
I will make two other points/suggestions: 1) notify the tenants' nearest post office that the tenants have been locked out of their apt buildings and that they wish to collect their mail from the post office and 2) if the fire was a recent event, go to HPD Emergency Relocation Unit at 100 Gold Street for emergency relocation services. HPD will verify the tenants' eligibility for services and provide temporary shelter through contracted housing providers and will also provided the displaced tenants with priority preference for NYCHA and/or HPD housing. Permanently or temporarily housed tenants can still retain their tenancy rights in their original homes if they choose return.
Actually there's no reason to reduce a rent stabilized tenancy to a dollar a month; the fire destroys the obligation to pay any rent until the apartment is restored and the lease continues the tenant's right to possession. Bringing the HP shows the absence of abandonment.
I suppose a tenant represented by competent counsel could avoid dealing with DHCR. Bring an HP and use the courts to establish that the T has not given up her right to the apt., and to establish that the fire relieves the T of the obligation to pay rent.
But it seems to me that in most cases a stabilized or controlled tenant should file the reduction in services form with DHCR and get the legal rent reduced to $1 per month, esp. Ts who are not represented by counsel, and then to send the $1 check every month to the LL.
One advantage of getting the fire marshal's report (and attaching it to the reduction in services complaint) is to see what FDNY says is the likely cause of the fire. If the FDNY thinks the T might be responsible, then the problem ______ encountered with his client becomes a real concern. But if the FDNY report does not include negligence by T as a possible cause, there would seem to be no chance that DHCR would find the T responsible.
I seem to remember it takes a couple of weeks to get the fire marshal's report from FDNY. You have to send a
request to their MetroTech office in Brooklyn, with a money order for a ridiculous amount (I think it was 25
cents when I did this two years ago) and enclose a SASE.
The HPD regulation covering relocation assistance to persons displaced as the result of the enforcement of a vacate order is 28 RCNY 18-01 (attached).
HPD's Emergency Housing Services Bureau is responsible for providing relocation assistance to tenants displaced as the result of a vacate order. A description and contact phone number -- (212) 863-8561 -- for EHSB is given at http://home2.nyc.gov/html/hpd/html/tenants/ehsb.shtml
The administrative hierarchy above EHSB is described at http://home2.nyc.gov/html/hpd/html/about/office-descr-housing-ops.shtml
In Cupidon v Donovan, the court required HPD to provide relocation assistance to a tenant displaced from an illegal apartment. It is online at http://www.nycourts.gov/reporter/3dseries/2005/2005_51263.htm
A story about the case appeared on the City Limits web site:
Last edited by TenantNet on Wed May 16, 2007 1:48 pm; edited 1 time in total