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Not received lease renewal, possible landlord retaliation?

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Not received lease renewal, possible landlord retaliation?

Postby guitarandjack » Mon May 01, 2023 4:58 pm

Lease ends 5/31, non-regulated building.

Never received anything in the 90-150 day window.

We brought up heavy weed & smoke & floral spray smells in common area. We get offer to terminate lease NO penalty.

We're choosing to stay, asked them to apply FREE month to renewal.

If we don't get anything by lease end, what do we do?

If they NON-RENEW us, is that landlord retaliation, and what is our best course of action?

Sorry for multiple ?s, this is all new to us. Happy to answer any additional questions.

THANK YOU!
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Re: Not received lease renewal, possible landlord retaliatio

Postby TenantNet » Mon May 01, 2023 5:36 pm

OK, this is much better. As you indicated you are not rent stab, this is more in the general Discussion Area.

But before I get into it, individual units may be regulated, or not. There is no such thing as a regulated building or non-regulated building. Many building are a mix of regulated and unregulated units.

So I gather you're in an unregulated unit with a lease ending 5/31/23. If the LL says the unit is unregulated, you should not take his word for it. Many LLs often use fraud to create fake unregulated units. If you find evidence to suggest the unit was deregulated unlawfully (or by fraud), then you could submit a challenge to DHCR. It's not easy, but it can be done. First thing would be to get a complete rent history from DHCR going back to 1984.

On this forum, search "Lebovits" for a PDF document that lays out the 2019 regulations.

You say the lease ends on 5/31.

As for the smells, to be honest, this is NYC and you should expect things like that (up to a point). Sure it's annoying, but it's not the thing court victories are made of.

A free month, well, that would depend of the owner is willing to negotiate.

If the LL does not want to negotiate that, then you will have to make your decision. We can't tell you what to do.

Or you could demand the LL control the smell of weed. Of course, they could ignore that request.

If the lease expires, and you do not renew, then that's your choice. If the LL continues to take your rent, then you become a month-to-month tenant.

Has the LL explicitly said they will not renew your lease? If that's the case, you could say it's retaliation for your prior complaint. But to be honest, the courts do not want to deal with such claims. It won't get you very far. You might be able to get some extra time to move, if that's the LL's intent, but in the end you would be forced to move. That's assuming the LL brings a holdover case against you.

In the end, three things could happen:

1. You choose not to renew.
2. LL says they will not renew and starts a case in court to get you out.
3. You say nothing and keep paying rent. (month-to-month tenant, for as long as LL decides to not push the issue).

We see a lot of horrific situations, but if you're just smelling weed. that's not the worst thing that can happen.

If you decide to move, I would make sure you have a place to go, and you can afford it.
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Re: Not received lease renewal, possible landlord retaliatio

Postby guitarandjack » Mon May 01, 2023 10:53 pm

That was very helpful, eye-opening, and in some points, admittedly disappointing.

So for practical intents & purposes, the NY Smoke Free Air Act is basically a joke? As in judges don't want to hear about it, not worth any lawyer's time, I as the tenant have nowhere to go, and the LL gets to ignore & get away with it?

We can ignore the occasional event, but 2-4 days a week, minimum once or twice from late PM to 1 to 2 AM - curious if that's not good enough to fall under a bit excessive?

(Catch is if it ONLY stayed in the COMMON areas we couldn't care less, but since the front door gap to the floor is big enough in our apartments, their smoke comes out of their front door, into the common area, and into ours, AND from the other end it comes in through the wall somewhere from their closet into our closet, then straight into our bedroom - our only "legal" defense is the polluting of the common area...)

------------

Moving at this point is not an option, as it's the closest place to our divorced daughter & grandson who need our help. Truth is we're willing to put up with a lot, and we have (how about a pool they advertise and point out, that's still a HOLE in the ground 1.5 years later? and that's just for starters.)

Ran into the leasing agent 10 days ago, who said he'd get me taken care of. (FYI he's on that email chain that's been going on for months, with another 2 guys.) Should I text him along the lines of, "Just wanted to follow up. Is this just an unfortunate delay, or something I should take action to protect my family & myself?" Or should I do NOTHING, especially since they automatically electronically take my rent monthly?

(BTW, never late. If anything, they've OVERCHARGED me a few times on utilities, etc... :lol: )

----------------

Looked up "retaliatory eviction-NY Property Law 223-b", and it ends with this:
Use

"The Anti-retaliatory Eviction statute, unfortunately, has not had
a significant impact in defending tenants who exercise their
rights, against landlord abuse. As previously mentioned, rent
regulated tenants have in their laws, protective provisions
against retaliatory tactics, so this statute overlaps with
others.

The retaliatory defense, however, is raised by tenant attorneys
but it is a difficult defense, the rebuttable presumption
notwithstanding; "motive" and "intent" on the part of the
landlord can be a highly subjective and debatable matter."


I'm getting the picture that here's another reminder I have no real defense or protection as a tenant.

That being the case, if I shouldn't even bother with legal help, I'm considering a few unconventional responses, primarily reaching out to:
1. The CEO of the company
2. The lead broker, someone famous
3. A very highly placed attorney at the NY AG's office who has previously sued this landlord
4. A factual review of this property on multiple sites, with proof where called for (a few positives, MANY OBJECTIVE negatives)
5. Filing something with NYC311,
Legal Aid Society,
Legal Services NYC,
Urban Justice Center,
NYC Tenant Protection Hotline
6. May be able to get a connection for someone to do a news write up

Then I'll CC the entire file of what I come up with (items 3 - 6) to the CEO & lead broker.

--------------------

Lastly, what do you think of this?
They advertise the monthly rent as, say, 2750, and add that there's ONE month free. I'd think, "I'll be paying 2750 for ELEVEN months." What they end up doing is taking the 2750 over TWELVE months 2750 x 12 = 33000, then dividing it into ELEVEN months, or 3000. So I end up paying 3000 for ELEVEN months, making me think I got ONE month free, when I didn't.

Is this just the accepted way of doing business in NY? Or is this a misrepresentation or violation?

I've already chatted up several tenants, and they're surprised when I point out their math, but not too happy as well. Will be happy to send a letter to each tenant if this is NOT right. One of my neighbors is about to leave, and she's hopping mad she hasn't gotten her "free" month...

ULTIMATELY, free month or not, I can live with it. The most important goal is our NOT moving.

Many thanks again.
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Re: Not received lease renewal, possible landlord retaliatio

Postby TenantNet » Tue May 02, 2023 12:47 am

Let's deal with one thing at a time.

There are many laws that are ignored. The real question is, what is the remedy. As an unregulated tenant (unless you can prove you should be RS), your rights mostly depend on the lease provisions. And if you push too far, the LL will decide to not renew your lease.

I'm not familiar with the act, but chances are you could sue the LL for not maintaining a smoke-free building. But you might be talking of ongoing expensive litigation. That's just the reality.

Most leases will be similar, so see if there are any provisions in your lease as to limitations on smoking. Also if your building has a tenant association, they can pressure the LL.

Same for harassment and retaliation. You have to decide what fights to pick. If you wish to pursue it, then go for it. I'd start out getting a consultation from an attorney that handles this area. They should give you a reasonable assessment of the time and cost.

Before that, have you spoken to the offending tenant. Some might be willing to keep their windows open in the opposite direction. One person's excess is another person being reasonable.

There are also ways to prevent or reduce air flow from under doors, often used to keep the cold out in winter. It's not perfect, but it helps.
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Re: Not received lease renewal, possible landlord retaliatio

Postby guitarandjack » Tue May 02, 2023 9:08 am

1. To keep things simple for myself, as far as taking action, it's coming down to ONE thing:

TenantNet wrote:I'd start out getting a consultation from an attorney that handles this area. They should give you a reasonable assessment of the time and cost.

Will do this - do have a few local attys I've looked up I can interview, specifically if the holdover situation arises, which I believe you've referred to:
TenantNet wrote:LL says they will not renew and starts a case in court to get you out.


------------------------
2. BTW, still would like your thoughts on their "one month free but not really" mathematical smoke & mirrors act...

3.
TenantNet wrote:And if you push too far, the LL will decide to not renew your lease.

Was only going to unload my "7 steps" IF we're forced to leave. I also approach these situations with an iron fist in a velvet glove coated with lots of honey. Even if we don't get a free month, as long as we're staying put none of that goes out. :lol:

4.
TenantNet wrote:Before that, have you spoken to the offending tenant.

Rather not in these situations. They're a bunch of young guys, I'm a small guy with my wife & daughter. Much rather send the 350 lb super to deal with them. :bounce:

Thanks :-D
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Re: Not received lease renewal, possible landlord retaliatio

Postby TenantNet » Tue May 02, 2023 10:23 am

Bottom line is this (as most of what you've said is just speculation):

As an unregulated tenant (again you can see if you have a case and should get a DHCR history), you have few rights other than what's in the lease. Even then, some things are almost impossible to enforce.

Yes there are anti-harassment and anti-retaliation laws, but in out experience, they are jokes.

If the LL doesn't like you (or even if he does), they can refuse to offer a new lease with no grounds specified, and take you to court if you don't move. That is what they can do. You would have no say except to negotiate and plead.

If your main desire is to stay put, then don't give him a reason to push you out. I don't enjoy saying this as we encourage tenants to stand up for their rights, but when your rights are few, then approach this with pragmatism. Having said that, making a complaint about the smell of marijuana (especially if a number of tenants say the same thing), should not make a LL unreasonable. But some LLs are not reasonable humans.
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Re: Not received lease renewal, possible landlord retaliatio

Postby guitarandjack » Tue May 02, 2023 11:02 am

TenantNet wrote:If your main desire is to stay put, then don't give him a reason to push you out. I don't enjoy saying this as we encourage tenants to stand up for their rights, but when your rights are few, then approach this with pragmatism. Having said that, making a complaint about the smell of marijuana (especially if a number of tenants say the same thing), should not make a LL unreasonable. But some LLs are not reasonable humans.


Well, not happy of course, but life is always about compromises and rolling with the punches. Been married for 36 years :lol:

THANK YOU very much for the candid NYC reality check.
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Surprise!

Postby guitarandjack » Wed May 03, 2023 3:12 pm

TenantNet wrote:So I gather you're in an unregulated unit with a lease ending 5/31/23. If the LL says the unit is unregulated, you should not take his word for it. Many LLs often use fraud to create fake unregulated units. If you find evidence to suggest the unit was deregulated unlawfully (or by fraud), then you could submit a challenge to DHCR. It's not easy, but it can be done. First thing would be to get a complete rent history from DHCR going back to 1984.


Well, surprise me!

So I decided to pull out my lease contract. I **ASSUMED** I was not in a stabilized unit.

But Item 33 reads:
"This apartment is subject to rent stabilization as the result of the owner's acceptance of 421A property tax exemptions."

Does that literally mean MY unit?

Waiting for atty to respond, as I contacted them yesterday.

Just got off the phone with DHCR. First she could NOT find our building, so first rep assumed building is not rent stab.

After I pulled the contract out, called a second time, and the lady was rather helpful & informative. I'm *confident* I'm not paying RS rates :lol: . But she had to repeat to me - that I MAY HAVE the option of filing a rent overcharge, as she explained that the reason our building was NOT on their system meant the OWNER had neglected to register with DHCR, and said the penalty was that tenants can file for rent overcharge...

What do you think?
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Re: Not received lease renewal, possible landlord retaliatio

Postby TenantNet » Wed May 03, 2023 5:40 pm

Complicated question with a complicated answer. Depends on when the building was constructed (do you know)? LLs get 421a tax abatements for keeping a number of units in the affordable category (but that doesn't mean it's really affordable). Most 421a situations are cons, which is why many tenant people have fought hard to get rid of the program.

421a can be run by either DHCR or HPD, so find that out. Seek out the regulatory agreement (check NYC DOF ACRIS database). The DOF will also have information on 421a buildings. If they don't DHCR might.

421a is not forever, so while you might be (or have been) RS for a while, it's not forever.

Get your rent history from DHCR.

It seems like there are irregularities here, but you need a bunch or more research and educated how this all works. I would say go for it.
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Re: Not received lease renewal, possible landlord retaliatio

Postby guitarandjack » Wed May 24, 2023 12:55 am

My apologies :)

One thread it is. Only thought to start the new one since it was a different topic, to me at least.

BTW, I DM'd you the landlord...

Really interesting turn of events.

Several tenants in our building were saying they have not paid rent for months, or paid partial, for multiple reasons - like the promised pool that's still a hole after 1.5 years (they've always advertised the pool like something that already exists.), etc.

Another tenant mentioned if they ask for rent or any amount, to ask the landlord to produce the cert of occ. So I did a little homework.

From the DOB Public Portal a810-dobnow.nyc.gov, our address shows NO CO has been issued.

Also spoke to Queens Dept of Housing and they couldn't find any either, except for jobs dating back from 2012, and were never issued a CO because requirements were never met.

They've been leasing units out for 1.5 years.

Not looking to NOT pay rent, but can I withhold or not pay say 10% for the "non-pool", and another 8.33% for the missing free month they offered but twisted mathematically by charging me the full 12 divided by 11?

My ONLY concern about reporting them is that I also read that if caught, order to vacate would be issued which wouldn't be an outcome that's actually good for us.

As an interesting PS, our fire extinguishers are all mounted on a wooden post weighted down by a concrete filled paint bucket. The only explanation I ever got was that a final fire inspection had not been done. Scary thought. :lol:
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Re: Not received lease renewal, possible landlord retaliatio

Postby TenantNet » Wed May 24, 2023 3:23 am

If tenants are RS they can file a reduction of services complaint. If successful, the rent would be reduced. RS and Non-RS tenants can also take their chances at court and maybe get an abatement of rent. That's usually for a warranty of habitability condition, not a service. A broken pool, in my mind, falls into both a provided service and Warr. of Hab. issue.

As for Cert. of Occupancy, understand that buildings constructed prior to 1939 did not require a COO, and only would do so now if the building was altered.

Can't say the rule applies in all cases, but if there's no COO, it might mean the LL is prohibited from maintaining a proceeding in housing court. I would search this forum and google to find cases.

I do not know if an order to vacate would be issued - it probably depends on the condition and what might be lacking. But yes, there are cases where buildings were in really bad condition where DOB would vacate tenants immediately. For not having a piece of paper, I doubt it.

I don't know, but would think that extinguishers would be required to be mounted to a wall securely.
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Re: Not received lease renewal, possible landlord retaliatio

Postby guitarandjack » Mon May 29, 2023 9:45 am

Question: Curious if a situation like this, with a few hundred tenants, is worth any attorney's time, practically & financially speaking?

Finally found a very nice inspector at DOB who confirmed no CO in sight. Putting this all together:
1. No CO
2. No Multiple Dwelling Registration number
3. Never reported annual rent roll as required for having the 421a tax abatement
4. Own paperwork says rent stabilized, yet never fulfilling obligation to do #3

From what several people at various DHCR & HFD have suggested, I do have a number of valid criteria to file an RA89 for rent overcharge.

-------------------------------------------------------------------

PS 1. Scheduling myself to speak to an attorney this week regarding the rent overcharge, and protecting myself from potential landlord retaliation.

PS 2. In a very unexpected twist of events a day ago - while I still have NOT received a lease renewal/denial in writing - lease up 5/31, I DID get a PDF bill for June rent, that was WAIVED, marked as a concession. I'll take that as a very positive response after 2.5 months of silence on their end. For now...

Thanks as always.
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Re: Not received lease renewal, possible landlord retaliatio

Postby TenantNet » Tue Oct 03, 2023 7:22 am

Apologies for the delay in responding; it's been a tough summer and now trying to catch up. Also a long list of other tenants that need replies. So let's leave it here for now.

In rereading the entire thread and your PM, you fall into the trap of trying to deal with everything all at once. This started with your smelling too much weed and a lease question, and now you're onto fire extinguishers. You need to focus on one problem at a time.

On the building, start here:
https://zola.planning.nyc.gov/ and put in the address --- but better to learn the block and lot number (more accurate).

Also see https://portal.displacementalert.org/

In both cases there are links to HPD, DOB, ACRIS, etc.

As for 421-a, there's a lot of info online: google it. Look for portals that list which buildings are on 421-a.

Also see this: https://www.linkedin.com/pulse/primer-a ... ram-kakkar

and https://library.answers.nyu.edu/faq/100628

How long the 421-a will last in your building (and RS protections), I would consult with a tenant attorney that specialized in housing abatements. It's up to you to learn the 421-a rules.


As for CO, see this article:
https://www.brickunderground.com/rent/a ... upancy-nyc

A recent decision (from a LL law firm) is at https://iapps.courts.state.ny.us/fbem/D ... ystem=prod

But be aware this has some background of preferential rents vs. one-time discounts, so it really doesn't apply to your situation. Still, it's informative.

And below from a LL law firm (this has info, but it's also LL bias - they will not help you). If you intend to push the CO issue, get legal advice first.

But for your ability to file with DHCR, that raises questions as to RS coverage (which the LL might deny). If they gave you the one-month discount, that is probably intended to keep you complacent. But in our opinion, a one-month discount is not an overcharge issue.

https://www.law.com/newyorklawjournal/2023/09/06/the-barring-of-rent-in-the-absence-of-a-certificate-of-occupancy-a-rule-still-inneed-of-much-clarification/
The Barring of Rent in the Absence of a Certificate of Occupancy—A Rule Still In Need of Much Clarification

It has long been understood that if a building which is a multiple dwelling does not have a certificate of occupancy, the owner may not maintain a non-payment proceeding for the recovery of rent. Despite the seeming clarity of the rule, issues concerning a lack of this certificate have spawned considerable litigation, often leading to a surprising number of disparate and conflicting results.

September 06, 2023 at 12:00 PM
Landlord Tenant Law
By Nativ Winiarsky

Since the Court of Appeals issued its ruling in Chazon v. Maugenest, 19 NY3d 410 (2012) (Chazon), it has long been understood that if a building which is a multiple dwelling (three units of more) does not have a certificate of occupancy (C/O), the owner may not maintain a non-payment proceeding for the recovery of rent.

Seems simple enough—until it’s not.

Despite the seeming clarity of the rule, issues concerning a lack of a C/O have spawned considerable litigation throughout the various courts, often leading to a surprising number of disparate and conflicting results.

One must first begin with reviewing the clear public policy reasons behind Multiple Dwelling Law (MDL) Sections 301 and 302 which are the governing statutes that underlie the rent forfeiture rule. MDL §301 provides that no multiple dwelling may be occupied unless a C/O has been issued and MDL §302 goes on to provide that an owner of a multiple dwelling who fails to obtain a C/O cannot recover for rent or money for use and occupancy.

The public policy intended to be served by MDL §302 was explicitly identified by the legislature when it declared in adopting the provision that “the establishment and maintenance of proper housing standards requiring sufficient light, air, sanitation and protection from fire hazards are essential to the public welfare” (MDL §2).

MDL §302 thus represents a legislative determination that regulation of particular conduct is necessary and the Legislature consequently decided to cast the obligation to ensure compliance upon an owner by expressly depriving him or her of any entitlement to rent in the absence of a C/O.

This all brings one to Chazon and the breadth of its holding.

Chazon was a case that dealt with a building that was an interim multiple dwelling that did not have a C/O and in which no residential use was allowed. The question raised was whether a “landlord of a New York City loft who has not complied with the Loft Law and has not received an extension of time to comply [with certain Loft Law timetables set forth in MDL §284] may maintain an ejectment action based on nonpayment of rent.”

The Court of Appeals reviewed MDL 302 (1) (b) and stated that in the absence of compliance with the timetables set forth by MDL § 284 or the granting of an extension of the relevant deadlines, “the law’s command is quite clear: ‘No rent shall be recovered by the owner or such premises”.

Inasmuch as the owner in Chazon was not in compliance with the MDL 284 timetables and thus did not have a certificate of occupancy, the court found that the owner was barred by the strict mandate of MDL 302 from collecting rent and “if this is an undesirable result, the problem is one to be addressed by the Legislature.”

While the facts in Chazon concerned itself with a building that did not have a certificate of occupancy, the question arose as to what happens when a building has a C/O but, due to some improvement and/or extension performed by the owner, the structure of the building does not conform to the existing C/O. This was the issue in several Appellate Division non-loft cases that have since discussed Chazon.

Thus, in Sky East v. Franco, 204 AD3d 594, 594 (1 Dept. 2022), the Appellate Division found an issue of fact as to whether the owner was barred from collection of rent where “the tenant presented evidence showing that the building’s CO had been revoked by a . . . resolution of the New York City Board of Standards & Appeals.” Similarly, in GVS Props. v. Vargas, 59 Misc.3d 128(A), *1-2 (App. Tm., 1 Dept. 2018), affirmed, 172 AD3d 466 (1 Dept. 2019), the Appellate Term found that the owner had “substantially altered” the building and that said multiple dwelling “now has 60 apartments, not the 53 permitted by the certificate of occupancy.”

As a result, the Department of Building refused to issue a C/O “because of serious fire safety concerns” relating to the lack of a second means of egress for certain apartments. Citing to Chazon, the Appellate Term held “[i]nasmuch as the building as presently configured varies substantially from what the certificate of occupancy permits and that the health and safety of all building residents is affected, landlord is barred from collecting rent for the entire building. The command of the Multiple Dwelling Law ‘is quite clear’.”

The Appellate Division of this Department affirmed and held, again citing to Chazon, that “no rent was due because the building lacked a valid certificate of occupancy.”

So far so good. Where things get a bit dicey is what happens when a building does not lack a C/O and the building structurally comports with the existing certificate of occupancy, but a tenant uses its space in a manner not in conformity with the C/O—for example, it uses its space for commercial use or uses a cellar space that is designed only for accessory use for habitable means.

In other words, is a violation of the C/O deemed to be equivalent as a building not having a C/O?

Here, in the absence of appellate authority, the lower courts have issues divergent opinions. Some courts have held that “[w]hen a violation exists for occupancy at odds with the certificate of occupancy, the building, essentially, lacks a certificate of occupancy.” 936 TYH RM Bronx LLC v. Brujan, 2022 NY Misc LEXIS 10682 (Civ. Ct., Bx. Cty. 2022).

Other courts have contrastingly held that where there is a valid C/O, a violation of non-conforming use does not warrant the imposition of the rent forfeiture provisions of MDL §302. See e.g., Schwartz v. 10 87 St. Partners, LLC, 2002 NY Misc. LEXIS 225 (Sup. Ct., NY Cty. 2020); De La Cruz v 676 Miller Ave LLC, 2023 N.Y. Misc. LEXIS 4365 (Sup. Ct., Kings Cty. 2023).

So which range of decisions are more in tune with Chazon? Well, since the Court of Appeals found itself wholly bound to the language of MDL §§301 and 302 in issuing such decision, one must revert to the language of those statutes to answer this question.

The term “said dwelling” in MDL §301 clearly refers to the multiple dwelling (i.e., building) in its entirety—and not to an individual unit. As stated by the court in Chatsworth 72nd Street Corp. v. Rigai, 71 Misc.2d 647, 653 (Civ. Ct. NY Co. 1972), aff’d 74 Misc.2d 298 (App. Tm., 1 Dept. 1973), aff’d 43 AD2d 685 (1 Dept. 1973), aff’d 35 NY2d 584 (1975) (“Chatsworth”) “section 302 deals solely with the absence of an objective document — a certificate of occupancy. It is keyed to section 301, the provision requiring a certificate of occupancy . . .”

Thus, when a building has no C/O, courts should construe §302 literally and prohibit the owner from collecting any rent. See Chazon, supra. On the other hand, when a C/O exists and a challenged use simply does not conform to it, there is no basis to apply MDL §302. See Schwartz, supra.

This conclusion is also entirely consistent with well settled law that MDL §§301-302 are penal statutes in derogation of the common law and are to be strictly construed and, therefore, may not be extended to grant to the tenant any right not expressly provided for therein and, conversely, should not be used to deprive an owner of rent due for use and occupation of his/her property. See e.g., (Coulston v Teliscope Productions, Ltd., 85 Misc. 2d 339, 340 [App Term, 1 Dept. 1975]).

To the extent that one may seek to rely upon the quote in Chazon that if the barring of rent “is an undesirable result, the problem is one to be addressed by the Legislature,” (Chazon, at 416) the Court of Appeals was absolutely correct. The clear and unequivocal terms of MDL §302 bar the collection of rent in the absence of a C/O and to the extent that may seem unfair, it is for the legislature to address.

But in the same vein that courts were instructed not to legislate in Chazon, they similarly should not seek to re-write MDL §§301 and 302 and expand the scope of this penal statute in derogation of common law to include not only buildings that do not have a C/O, but also those with existing violations of use under an existing and valid certificate of occupancy. To the extent that one may feel otherwise, “the problem is one to be addressed by the Legislature.”

Lastly, there remains the question whether there exist any equitable exceptions to MDL §§301 and 302 under Chazon. Here, case law is yet again unclear, but it tilts against the imposition of rent forfeiture when a non-conforming use was specifically created by a tenant without the knowledge and/or consent of the owner.

The seminal and most oft cited case on this issue is Chatsworth. In Chatsworth, the tenants occupied a basement apartment in a building that did not have a C/O and asserted the prohibition against rent collection pursuant to MDL 302 in defense of owner’s non-payment proceeding. “Concededly, for some years landlord has been seeking to correct this illegality . . .” but yet “[the tenants] blocked landlord from seeking to cure the illegal condition.”

In rejecting the notion that the owner should be barred from collecting rent due to a condition created by the tenant, the court judiciously ruled:

No such absurd result is demanded by the law. The sanctions imposed by section 302 presuppose a certificate of occupancy denied because of volitional illegality. They were designed as a tool to stimulate the conversion of unsafe and substandard dwellings into proper and legal ones. Where tenants themselves have prevented the carrying out of the legislative objective, it flies in the face, not only of common sense, but of every maxim of statutory construction, that tenants should be allowed to profit from their own actions. (Emphasis added).

Both the Appellate Term, Appellate Division and Court of Appeals affirmed, with the Court of Appeals wholly adopting and endorsing the reasoning employed by the trial court.

Since the Court of Appeals’ issued its decision in Chatsworth, it has been continually cited by various appellate courts for the proposition that equitable relief is available from the strictures of MDL §302 in cases where a tenant causes the non-conforming use. See e.g., Caldwell v. American Package Co, 57 AD3d 15, 24 (2 Dept. 2008); Hart-Zafra v. Singh, 16 AD3d 143, 143-144 (1st Dept. 2005).

Some lower courts have taken the position that Chazon should be read as overturning Chatsworth and that “[t]he Court’s application of MDL §302 appears to render the rest of the authority standing for a different result without effect.” Lispenard Studio Corp. v. Loeb, 2016 NY Misc. LEXIS 1933 (Civ. Ct., NY Cty. 2016).

Other courts, however, have continued to consider the Chatsworth equitable exception analysis even post Chazon. See e.g., Trafalgar Co. v. Malone, 2021 N.Y. Misc. LEXIS 6654 (Civ. Ct., NY Cty. 2021), aff’d, 73 Misc. 3d 137(A) (App. Tm., 1st Dept. 2021); Zev Ger Inc. v. Garcia, 76 Misc. 3d 1205(A), *3-5 (Civ. Ct., Kings Cty. 2022).

It seems to this writer that the equitable exception espoused by the Court of Appeals in Chatsworth is, and must remain, good law for two primary reasons. First, to argue that Chazon sub silentio overruled Chatsworth (and almost fifty years of appellate case law based thereon) would run afoul of yet another long-standing rule that the Court of Appeals “do[es] not overrule important authorities sub silentio.” Pratt Inst. v City of New York, 183 NY 151, 161 (1905).

Furthermore, from a public policy perspective, to discard this rule would yield absurd and wholly inequitable results.

For example, if tenants in a building sought to inexcusably avoid the payment of rent, they could simply throw a mattress and some personal items down in a cellar area (where such habitable use is prohibited) and call a DOB inspector who will inevitably issue a non-conforming use violation. The tenants would argue that the owner would thereby be barred from collecting rent from anyone in the building. This malign pattern could easily repeat itself time and time again and there would inexorably be nothing that could be done to prevent countless reoccurrences of this mischievous charade.

Of course, such a result would wholly defeat the manifest purpose of MDL §§301-302. As the Appellate Division stated in Hornfeld v. Gaare, 130 AD2d 398, 400 (1st Dept. 1987), “[c]learly, this bizarre ‘Catch-22’ situation is unjust and cannot be permitted to continue.” Certainly, in other areas of law, it has long been familiar doctrine that where a condition precedent exists to the enforcement of a claim, and one party prevents performance of that condition, one cannot set up nonperformance as a defense. “One may not take advantage of a condition precedent, the performance of which he himself has rendered impossible.” (Kooleraire Serv. & Installation Corp. v. Board of Educ. of City of N.Y., 28 N Y 2d 101, 106 [1971].

Chazon should be read in its context and there can thus be no ruling which would allow a violation to the C/O caused by a tenant without the knowledge and/or consent of an owner to relieve an entire building of its obligation pay rent. For otherwise we would reach a result that would approach the level of absurdity rightly decried in Chatsworth.

Nativ Winiarsky is the senior litigation partner at Kucker Marino Winiarsky & Bittens.
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Got renewal contract 6 months late. Some ?s

Postby guitarandjack » Fri Dec 29, 2023 11:39 am

Renewal time was June, 2023, never got renewal paperwork in the 90 to 120 date range before. Someone finally emailed me a copy of the renewal contract late Nov.

Apt is rent stabilized.

Worth noting, they are still billing me automatically at the old amount monthly like they normally do. FYI, they are NOT threatening eviction or anything.

QUESTIONS:
1. Am I obligated to sign this halfway through, with an increase of 5%, most likely with a retroactive balance due, along with an additional amount for deposit?

2. If they continue to bill me monthly, and I pay that bill, can I remain like that WITHOUT signing anything?

Thanks.
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Re: Not received lease renewal, possible landlord retaliatio

Postby Bigskunk911 » Sat Jan 27, 2024 5:01 am

If the LL doesn't renew your lease, I believe you can still live there and pay the same rate. There could be additional issues, for instance if the LL changes your lease terms or if you wish to withold rent so the LL would be forced to deal with issues in housing court. Can't really comment on the Co issue other than above that buildings before 1938 didn't have them unless altered.

Be aware that sometimes the Cofo may not be listed on the DOB BIS website but on DOB NOW. Also, as far as HPD is considered sometimes when looking up a building, just because it comes back with no results, doesn't mean it wasn't registered. When a new building is constructed it may have a new bbl (borough block lot number), so typing in the address may not get a result. This occurs in my building when looking it up on hpd's website. You may also want to get the bbl on acris, as some new buildings are structured as condos, doesn't mean the apartments themselves are condos but rather the ownership is a condo, maybe because there's a commercial part of the building. The term condop refers to this as to have a tax or financing structure, but is often used by realtors to describe a coop which has few or little rules by the board similar to a condo (though some condo associations can be restrictive).
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