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LL can't collect rent - no valid C of O

NYC Housing Court Practice/Procedures

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LL can't collect rent - no valid C of O

Postby TenantNet » Wed Sep 19, 2012 1:39 pm

Landlord Barred From Collecting Rent Based on MDL §§302(a) and (b) and MDL 301(1)—Cannot Collect Rent Absent Valid C of O—Pre-1929 Building Had Been Altered and Therefore Needed a C of O—Court Would Not "Condone a Landlord's Blatant Disregard for the Law and the Health and Safety of the Tenants"

A landlord had commenced a nonpayment proceeding. The tenant moved to amend her answer and upon such amendment, for summary judgment. The landlord cross-moved to strike the tenant's answers and dismiss any counterclaims. The tenant's proposed amended answer asserted, inter alia, an affirmative defense that pursuant to Multiple Dwelling Law (MDL) §302(1)(b), the landlord is barred from collecting rent because the building lacks a valid certificate of occupancy (C of O). The tenant provided a copy of the "I-Card," copies of open NYC Dept. of Buildings (DOB) violations for occupancy contrary to the C of O and a certified letter from the DOB stating that there is no C of O on file. The tenant had initially appeared pro se and needed time to retain counsel. The court explained that a valid C of O, or a valid reason for not having one, is a "fundamental element of a nonpayment proceeding," and therefore, "the [tenant's] reasonable delay in raising a meritorious defense is not prejudicial to the [landlord]." The court permitted the tenant to file the amended answer.

Both parties had agreed that there was no C of O. The tenant argued that the building had been built before 1929, but that it had been "substantially altered" and "therefore, it is no longer exempt from [MDL] 301(1) and must have a valid [C of O]." The landlord acknowledged that substantial alterations have been made to the building and the existence of 15 unresolved DOB and ECB violations, many of which are hazardous. The violations included, inter alia, "creating additional apartments in violation of the occupancy guidelines on file with the [DOB]." The landlord argued that "the absence of a violation from HPD, DOB and ECB for failing to have a [C of O] means that the building is not required to have a [C of O] as a matter of law." The court disagreed.

The landlord failed to submit "competent proof to contradict that the alterations as described in respondent's affidavit and the affidavit of [another tenant], in addition to the DOB violations, include the creation of three new apartments with kitchen and bathroom fixtures with plumbing and gas lines for gas stoves, demonstrate that substantial alterations have been made to this building." The building was originally a six unit building, but now it contains nine units. The landlord did not provide any permits for the alteration work.

The court stated that "[p]ursuant to MDL 301(1), this pre-1929 building has been altered and is required to have a [C of O]." Moreover, "[p]ursuant to MDL §302(a) and (b), the absence of a [C of O] precludes petitioner from collecting rent or maintaining a summary proceeding for non-payment of rent." The court acknowledged that "several exceptions have been carved out of this statute by case law." The exceptions involve "situations in which the tenant has converted the premises or prevented the landlord from correcting the violations, or buildings in which a [C of O] was in place and the landlord had substantially complied with requirements and did not endanger residential tenants."

Here, no C of O has ever existed. The landlord had "affirmatively altered the building from the original occupancy for financial gain, by increasing the number of residential units without the permission or approval of the [DOB] or work permits, thereby making occupancy of all the units unlawful until a [C of O] is obtained for the current or until the building is returned to its original usage." The court explained that "[t]he legislative intent of MDL §§301 and 302 was specifically to discourage and penalize the behavior of landlords who unlawfully alter residential buildings and endanger tenants, and the court can not condone a landlord's blatant disregard for the law and the health and safety of the tenants. MDL §302 is intended to be penal and strictly applied, in order to compel owners to meet their obligations…. It may not be waived and it severely penalizes those who decide to rent illegal apartments…. Furthermore, even upon compliance, rent is not retroactively recoverable for the period of noncompliance…." The court therefore held that the landlord was "barred from collecting rent… until there is a valid [C of O] for this building, and upon compliance, may only collect rent prospectively." The court then dismissed the non-payment proceeding with prejudice.

208 Himrod St. LLC v. Irizarry, 78876/2011, NYLJ 1202560835460, at *1 (Civ., KI, Decided June 7, 2012), Milin, J.
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My building has had only temperary cert.s of occ since 2009

Postby Habitability Wanted » Thu Aug 22, 2013 4:34 pm

I was behind in my rent and went to trial to try to get some of it abated due to breaches of warr. of habitability.
I lost and am evicted and have a judgement against me, but no marshal notice yet, I think becus the elevators have been down.
I filed a notice of appeal but have time to get the transcript and write a brief.
I just read this TenantNet article about having a valid C of O. I looked up my building and found out it has only had temperary cert. of occ.s since early Jan 2009, 21 temperary certificates, except for Feb 2009 to Sep 2009 when there was a stop work order and no temperary cert. of occ. until Sep 2009, that's when they started again.
MLD 301 or 302 says temp certs can't go on for over 2 years, is this true? Can I use this in my appeal, that the building has no cert of occ, just temp cert of occ.s since Jan 2009, for over 2 years, and so I don't owe rent until the building has a cert of occ?
Also, can I ask for my rent money back that I paid while there was no temp cert of occ due to the stop work order from Feb 09 to Sep 09?
Also, at my trial landlord didn't give judge a cert of occ, only stuff like registrations for building dept and dhcr registrant, deed, regulitory agrmt and other stuff but no c of o.
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Postby TenantNet » Thu Aug 22, 2013 4:41 pm

If you have a judgment against you, I would strongly urge you to speak to an attorney.
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