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Relocation during Repairs

NYC Housing Court Practice/Procedures

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Relocation during Repairs

Postby dakellner@kcdlaw.com » Mon Apr 08, 2002 1:41 pm

After years of neglecting repairs to the roof, the landlord's engineer has told them that the roof is so dangerous that it is about the collapse into the apartments below. The engineer has warned that the tenants on the top floor should move out immediately, although the Department of Buildings has not yet issued a formal vacate order.

The building is fairly large and many apartments turn over all of the time, so there are always some vacancies. But the landlord does not want to relocate the top floor tenants pending the repairs to the roof unless they pay market rents during the relocation. Obviously, we think this is a ridiculous demand, but, remarkably, there is very little precedent that compels a landlord to relocate the affected tenants to other apartments while the roof is being repaired.

The Rent Stabilization Code contains very specific rules for relocation of regulated hotel tenants during repairs. There is also a provision in the RSC that permits an owner to deny a renewal lease on the ground that repairs are required, RSC 2524.5, but that provision also requires that the landlord relocate the tenant to comparable housing or pay the relocation stipend. The tenant also has the right to move back when the work is completed. It appears that the Rent Stabilization Code never considered the problem of emergency relocation before the expiration of a lease.

We've been arguing that this was not an issue under rent stabilization because the emergency condition is a breach of the lease, both the warranty of habitability and the covenant of quiet enjoyment. Because this is a breach of lease, the landlord is responsible for all consequential damages.

We have asked for equitable relief from the Housing Court and the landlord has argued that the Housing Court lacks jurisdiction to compel relocation.

The case will go to trial soon. Any thoughts that you have would be welcome.
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Re: Relocation during Repairs

Postby <astor> » Mon Apr 08, 2002 8:59 pm

I hope all of you have renters insurance to cover YOUR belongings, even if the roof collapses you wont be covered by the landlords insurance.
<astor>
 

Re: Relocation during Repairs

Postby consigliere » Mon Apr 08, 2002 11:04 pm

Is the current proceeding in housing court an HP proceeding or a non-payment proceeding?
 
If the housing court agrees with the landlord that it lacks jurisdiction, you could go to state Supreme Court.
 
Richard (a/k/a "astor" -- at least for this week, anyway) is wrong. Even if the landlord's insurance carrier won't cover damage to the tenants' property, the landlord is still liable. However, renter's insurance probably would cover temporary living expenses elsewhere, in addition to covering damage to the tenant's property.
 
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Re: Relocation during Repairs

Postby <Red Zephyr> » Tue Apr 09, 2002 12:10 am

Richard/Astor is correct, Consigliere is wrong.

Commercial building insurance policy does not extend to a tenant's possesions. And standard lease agreements do not call for the landlord to insure the tenants belongings.

What was stated is correct:
I hope all of you have renters insurance to cover YOUR belongings, even if the roof collapses you wont be covered by the landlords insurance.
<Red Zephyr>
 

Re: Relocation during Repairs

Postby TenantNet » Tue Apr 09, 2002 1:23 am

First, Astor/Richard was banned from this board some time ago. If we see him again (and we can tell who it is), we may delete any thread with apologies to the original poster, or we may require registration of all participants (perhaps what Richard desires). Red Zypher had received a suspension. Because of the changeover in forum software, we had not enforced it completely. It's not surprising that both are unregistered.

Neither made any attempt to answer the question. First as to jurisdiction, Consigliere may be correct that Supreme Court has jurisdiction. As to Housing Court, it may depend on the relief sought.

If it's a SRO, the tenants should contact the West Side SRO Law Project ASAP. Required relocation is one issue. The owner's obligation to restore possession is a separate issue. Without getting into the intracacies of the RSC, the tenants have a lease and a landlord/tenant relationship. The tenants can pay a minimal sum ($1) and still maintain that relationship during the period of relocation. They would still maintain their rent stabilization status. The WS-SRO can probably flesh out other details of what is required in such situations.
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Re: Relocation during Repairs

Postby consigliere » Tue Apr 09, 2002 2:46 am

Red Zephyr and Richard (a/k/a astor) are the ones who are wrong.
 
The landlord's neglect of the roof has put the tenants in the position of (1) having to temporarily relocate and (2) having their property damaged, (a) if the roof caves in, or (b) while the repairs to the roof are made.
 
The landlord is liable for the consequential damages of its neglect of the roof. The landlord's insurance carrier might pay for any damages to the tenants' property, but even if it doesn't, the landlord is still liable for the damages, because it was aware of the problem and didn't fix it promptly.
 
 
Red Zephyr wrote:
 
Richard/Astor is correct, Consigliere is wrong.
 
Commercial building insurance policy does not extend to a tenant's possesions. And standard lease agreements do not call for the landlord to insure the tenants belongings.
 
What was stated is correct:
 
I hope all of you have renters insurance to cover YOUR belongings, even if the roof collapses you wont be covered by the landlords insurance.

 
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Re: Relocation during Repairs

Postby <astor> » Tue Apr 09, 2002 8:37 am

Wether i am right or wrong, having renters insurance would sure be a whole lot better then not having it. Then your insurance companies would fight aganst the landlord vs just you. MUCH MUCH better odds.
<astor>
 

Re: Relocation during Repairs

Postby dakellner@kcdlaw.com » Tue Apr 09, 2002 9:02 am

The tenants have an HP proceeding pending before Judge Fitzpatrick in the Manhattan housing court. The tenant who lives in the most threatened apartment has not waited for a vacate order; she has moved out and is staying in a hotel. Obviously we consider that she has been constructively evicted and she will seek consequential damages.

The real issue is whether the Housing Court can order the landlord to place the tenant in a comparable vacant apartment in the building. The landlord refuses and argues that the tenant is entitled to damages only. We have not found a single case where a landlord has ever been ordered to provide relocation. We argue, however, that the court should exercise its equitable jurisdiction to make such an order.

If anyone knows of any precedents in this regard it would be much appreciated.
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Re: Relocation during Repairs

Postby consigliere » Fri Apr 12, 2002 9:42 am

Go to New York Slip Opinions Service and look up Farber v. 535 East 86th Street Corp. and Department of Housing Preservation and Development, 2002 WL 317987, 2002 N.Y. Slip Op. 50064(U), where the Appellate Term, First Department addressed the issue of relocating a tenant during repairs.
 
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Re: Relocation during Repairs

Postby Brooklyn Babe » Sat Apr 13, 2002 2:34 pm

Hey Challenger,
Follow advice Consigliere gives you, as I have found (over 9 mths) the advice to be reliable and accurate (I just wish he would post more :-) ).
I'm not sure if HP Crt is going to make LL relocate you, but since it is so "stipulation" orientated, try to fight/negotiate it in your stip.
In my "new" experience, it seems that a Vacate Order entitles the tenant to certain undisputed relief.
Ok, I am currently staying (as of last night) in a Red Cross/ HPD vendor Hotel in BK, at no cost, due to no 2nd means of egress. Also, on Thurs. HPD hired movers to pack and store my belongings.
HPD had issued the Vacate Order, but Dept. of Buildings and Fire Dept. can also issue an order.
Call in all the agencies and have them do an inspection. I think D.O.B will be your strongest ally. You must let the inspector know you WANT to be vacated because you are in fear of the roof falling in, as most tenants don't, so agencies are hesitant. If they do not issue a vacate order, call the Commisioner of that Dept. and ask why a vacate has/is not being issued. You'll get your vacate in 24-48 hrs :-). They may also ask your LL to agree to move you into the lower apts., as the agency will be charging him for your off premises relocation (let all the Inspector/agency know you would prefer to relocate in the building, but LL will not agree).
If no agreement is reacched, The Red Cross worker will show up and give you paerwork to go to Red Cross H.O., where they will place you in a hotel (nice ones in manhattan are Hotel Habitat and 3030).
The other "plus" side to the Vacate Order is that it is undisputed document that will greatly assist your "warranty of habibilty" and "constructive eviction" claim. Whether or not HP court lacks jurisdiction, you are eventually going to have to file suit in civil court to collect your damages.
Weigh your options carefully. I was begging to get out of my apt. due to the conditions, but was obligated to a lease that expires in 2003. My LL is not going to fix the building, so my new apt. search has started. If you love your apt. you may need to take a different approach...
Best of Luck!
The above information is from a non-attorney tenant activist and is not considered or to be used as legal advice.
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Re: Relocation during Repairs

Postby consigliere » Sat Apr 13, 2002 4:12 pm

In Farber v. 535 East 86th Street Corp. and Department of Housing Preservation and Development, which was an HP proceeding, Housing Court Judge Margaret Parisi McGowan ordered the landlord to bear the costs of relocating the tenant during repairs.
 
While the Appellate Term rejected that finding, holding that the repairs could be made room by room, as they had been in other apartments in the building, without the tenants relocating, the Appellate Term did not reject, per se, the concept of a landlord being required to pay the costs of relocation during repairs.
 
Challenger, or his attorney, should check the record at the Appellate Term and in Housing Court to see if other decisions are cited that require a landlord to pay for the costs of relocation during repairs.
 
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Re: Relocation during Repairs

Postby dakellner@kcdlaw.com » Tue Apr 16, 2002 11:07 am

We settled the case yesterday on fairly favorable terms. The landlord will be relocating the tenants to comparable apartments in the building at the old regulated rents. The landlord will be paying all expenses in connection with the relocation and some of the tenants will receive substantial rent abatements.

Appellate Term had refused to vacate the stay of renting vacant apartments until relocation of the tenants. Unfortunately, Appellate Term does not write opinions on motions, so there is no public record to use as a precedent.

Even though Appellate Term refused to vacate the stay preventing the rental of vacant apartments, Judge Fitzpatrick subsequently vacated the stay, but also indicated that the landlord was required to offer suitable comparable housing.

Thanks to everyone who made productive suggestions.
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