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Unauthorized Entry/Security Deposit Questions

NYC Rent Regulation: Rent Control/Rent Stabilized, DHCR Practice/Procedures

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Unauthorized Entry/Security Deposit Questions

Postby ChristineW » Wed Jun 19, 2002 6:27 am

Looking for some advice. I gave notice on my rent-stabilized apartment at the end of May for July 1, and paid June's rent. I physically moved out on June 12, but as I had done some painting I left messages with the management company (who are very bad about returning calls) asking how much they would take out of my security deposit to repaint the apartment because if it was going to be a lot I would do it myself before June 30. Days went by with no return call. It's now a week later, and in response to my calls/emails yesterday I've been told they have already come in and painted it themselves and would take an as-yet-undisclosed amount out of my security deposit.

I find this fairly outrageous, since 1) I'd left messages asking for guidance on the issue, saying quite clearly that I wanted to make the decision about doing my own painting, and 2) the apartment is still mine until June 30, so they've entered the apartment and done work without my permission.

Do I have any rights here? I have no problem paying a reasonable amount for the painting, but I don't feel I should have to do that plus pay June's entire rent if they are already treating it as though it has been vacated. Are they obligated to give me half the month's rent back (and then remove the painting cost from my deposit)?

(Don't know if this matters at all but the background on the notice-giving is I broke the lease but presented the landlord with a suitable new tenant at the same time. They accepted her no problem.)

Thanks for any counsel.

Christine
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Re: Unauthorized Entry/Security Deposit Questions

Postby digerati » Wed Jun 19, 2002 11:12 am

If the apartment was vacant, the LL does not need permission to enter and perform maintenance and/or major capital improvements. However, the fact that your lease had not yet expired is interesting. He may try and use the defense above - that the apt. was vacant - to support his decision. However, my guess is that even though he knew you had vacated the apartment, he is still not allowed to enter without consent, or written permission.

Here are a few Q&A's from the Nolo section on Tenant.net.

http://www.tenant.net/Court/nolo/faq7.html

1. Does my landlord have the right to enter my apartment whenever he or she wants?

It depends on the state. In all states, a landlord or manager may enter rented premises while the tenant is living there without advance notice in the case of emergency, such as a fire or serious water leak. And, of course, a landlord may enter when a tenant gives permission. Beyond that, laws in many states guarantee tenants reasonable privacy rights against landlord intrusions.

2. Assuming it is not an emergency, but the landlord has a valid reason to enter-for example, to make repairs-what kind of notice is required?

States typically require landlords to provide a specific amount of notice (usually 24 hours) before entering a rental unit. In some states, such as California, landlords must provide a reasonable amount of notice, legally presumed to be 24 hours. Landlords can usually enter on shorter notice if it is impracticable to provide the required amount of notice.

Good Luck.
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Re: Unauthorized Entry/Security Deposit Questions

Postby Cranky Tenant » Wed Jun 19, 2002 11:53 am

Unless you painted the apartment an unusual, or "non-neutral" color, painting is considered normal wear and tear. It should have been the LL's responsibiltiy and there's no reason why the cost should be deducted from your security deposit.

Beyond that, rent is normally paid bu the month so I doubt you can get a refund because you left before the end of the month.. even if he did enter the apartment.
I'm a cranky tenant NOT a cranky lawyer.
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Re: Unauthorized Entry/Security Deposit Questions

Postby Phil Cohen » Wed Jun 19, 2002 6:57 pm

One other thought is that LLs are, I am fairly sure, required to repaint RS apts. after a tenant moves out. Perhaps someone can point this person in the direction of the law, if it exists.
If so, regardless of what you may have told the LL, he simply can't charge you for the repainting.
Keep in mind that improperly withholding a security deposit can subject a LL to treble (I think) damages
Keep in mind that I am a tenant. Not a lawyer!!!!!
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Re: Unauthorized Entry/Security Deposit Questions

Postby ChristineW » Thu Jun 20, 2002 7:12 am

All -- thanks for the responses. I feel on a bit firmer ground, since 1) even if he can enter, if reasonable notice is required there was no notice at all and indeed i had expressly asked that he not undertake any work without giving me a chance to do it myself and 2) the bit about painting being required. It was a neutral color but it wasn't white, and I was told it had to go back to white.

I have replied to them but haven't heard anything back. Thanks for your help.
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Re: Unauthorized Entry/Security Deposit Questions

Postby TenantNet » Thu Jun 20, 2002 11:44 am

A few thoughts on the postings. Painting is required by the Housing Maintenance Code (in NYC) every three years or soon er if it needs it. It really isn't a Rent Stab issue (although a RS tenant could complain for lack of painting) and applies to all units.

Painting is maintenance and not a major capital improvement (which are building-wide), an "individual apartment improvement" or anything where the LL can incrase the rent or withhold money from a security deposit.

If the tenant has already paid June's rent, they are at the mercy of the LL and the options are to go to small claims court or the Attorney General's office - if the LL does what they have said. Chances are they will jerk the tenant around for a few months. That is whay some tenants withhold the last month's rent to be on a more even playing field regarding security deposits. What the tenant can do is maintain possession (i.e., not give up keys and/or change the locks) after the first of the month until the LL returns the deposit. THis is tricky as the LL might claim the tenant is accrueing additional rent or "use and occupancy." On the other hand, if the tenant is hard-nosed, it woudl force the LL to go to court to gain occupancy.

As for the comments of "me again" they are misleading and the LL does not have carte blanche. They can certainly enter without notice in an emergency. But otherwise there has to be advance notice and an explanation of what the access is for. The tenant cannot unreasonably withhold access, but if the LL's request is unreasonable - for repeated inspections or at odd hours, etc., the tenant can legally force the issue by withholding access. The LL's option is to go to court seeking access and the tenant's defense is that the request is unreasonable. If they enter without notice when the tenant is not home or has not given permission, we advise tenants to file a criminal complaint. But even that can be tricky and depends on a lot of things.
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