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Returned rental checks

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

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Returned rental checks

Postby July5 » Tue Oct 22, 2019 9:48 pm

I live in a rent control apt with my father and my LL just returned the rent check since it came from our joint account. He is the tenant of record. I have been paying the rent with this check for 20 years and they have been accepting it. Is this legal?

Thanks
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Re: Returned rental checks

Postby TenantNet » Tue Oct 22, 2019 10:42 pm

First, please answer this:

1. Is the unit rent controlled, or would it be rent stabilized? To be RC, the tenant of record must have live in the unit since 1971.

2. Does your father actually still live there? Or is there any reason why the LL might think he's no longer an actual resident?
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Re: Returned rental checks

Postby July5 » Wed Oct 23, 2019 9:09 am

The apt is rent control and my father still lives in the apt (moved in before 1971).

Thanks
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Re: Returned rental checks

Postby TenantNet » Wed Oct 23, 2019 2:30 pm

First, in any situation with the LL, keep the money aside (do not spend it under any circumstance). Keep all papers incl envelopes that have postmarks. This falls under a "tendered and refused" defense if the LL ever hauls you into court.

Second, make a decision. If you just want this over today, the go out an buy a money order and send that (by certified mail) signed by your father.

However, if you want to fight it (we would do that), then first understand the LL must accept legal tender. The LL has an argument that if they accept rent from someone who has no basis to be paying rent, i.e., a roommate or sublet who is not part of the TOR's family, they fear that person might some day claim tenancy rights. It's not that simple, but it has been done.

In this case a) you are the TOR's child and possibly will have succession rights some day, and b) the check has your father's name on it, the objection is your name as well, c) you can claim they have waived any right to object over time.

Did the LL insist (in writing) that the TOR must either send a check with only his name on it, or send a signed acknowledgement that child makes no claims of tenancy and never will to the apartment (never do that), or send a court order naming son as Power of Attorney?

One person suggested sending a letter from the tenant and his child son stating that payments made from the joint checking account may be accepted without implying any landlord-tenant relationship between LL and child, accompanied by DHCR form 23.5 naming the child as a family member with potential future succession rights.

Remember that nothing you might tell the LL now - even if in writing - can waive the child's right to succeed under the Rent Stabilization Law/Code.

Another person suggestion that if the joint account was set-up by the father's medical condition, you can request the LL accept the checks as a "reasonable accommodation" (under the Americans with Disabilities Act) for this condition. This might give you the basis for a counterclaim if the LL does take you to court.

If you do choose to fight, I would suggest consulting with a tenant attorney (some advertise on this site). Many LLs will back-off if you come back at them with guns loaded.

It is our understanding that tenants may pay rent using any form of legal tender. And I'm not aware of any law that gives LLs the right to refuse tendered rent from a joint account, as long as one of the names is that of the TOR.

Here's one case I found (partial excerpt). It applies to NYCHA tenants, but I believe the law would apply the same to RC/RS tenants:

Anderson Avenue Assoc., L.P. v. García, L&T 036888/2015, NYLJ 1202746252696, (Civil., BX, Decided December 21, 2015)

It is well-settled that a summary nonpayment proceeding may not be maintained when the tenant offers rent payments to a landlord who repeatedly and unreasonably refuses to accept them (see Haberman v. Singer, 3 AD3d 188, 191 [2004]; Janes v. Paddell, 74 Misc 409, 415-416 [AT 1st 1911] ["In view of the tender and willingness of the tenant (and a third-party) to pay the rent and the repeated refusals to accept it by the landlord, we think that it is evident that she should not be permitted to predicate proceedings to dispossess the tenant upon the fact that the rent has not been paid"]). This rule is in place in order to prevent a landlord from "manipulating the tenant with the tenant's ultimate inability to satisfy a judgment and consequent eviction in mind" (Haberman v. Singer, 3 AD3d at 192). Courts have held this to be the case even when rental payments are offered by a third party, such as relatives or HRA (see 16 Apartment Assoc. Inc. v. Lewis, 24 Misc 3d 127[A], 2009 NY Slip Op 51265[U] [AT 2d 2009]). Relevantly and controlling herein, the Housing Court has recently dismissed a nonpayment proceeding after compelling that landlord to accept shelter payments made by HRA on behalf of the tenant-ofrecord's grandson, who was not a named tenant (see PCMH 2950 Grand Concourse, L.P. v. Jones, NYLJ, September 3, 2014, at 1 [NYC Civ Ct, Stroth, J.]).
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Re: Returned rental checks

Postby July5 » Wed Oct 23, 2019 3:45 pm

Thank you. This is very informative.

At this point, does it make sense to have my father write a letter that he is looking to move out in a year and for me to exercise my right to succession? It looks like that LL will continue to this harassment to get me out. My father wants to travel and spend more time with family members that don't live in NY. He is always nervous about going away. He feels that the LL is always watching him. But he wants to be more independent, now that he is a widower. There are no family members that live in NY that can visit him. We had discussed this before, but I was reluctant. But now that the LL is cooking up something, maybe it's a good idea?

Thank you.
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Re: Returned rental checks

Postby TenantNet » Wed Oct 23, 2019 4:31 pm

Succession is a whole different thing. I would recommend consulting a tenant attorney (who has experience in succession cases) to get all your ducks in order and use the DHCR form on succession rights.

https://hcr.ny.gov/system/files/documen ... iction.pdf

Also see https://hcr.ny.gov/system/files/documen ... afac30.pdf

You must have resided in the unit two years (one year is 62 or older or disabled) prior to when the TOR vacates. Many tenants get that wrong. In some cases the TOR leaves a number of years before the child claims succession rights, and that can lead to problems. You need to be careful and follow all steps by the book.

If you're the natural child of the TOR, then that should not be an issue.

LLs will try to intimidate you and make demands. Do not let them push you around. Always save any communication and envelopes. Keep copies of everything and always send mail to the LL by certified mail.
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Re: Returned rental checks

Postby July5 » Wed Oct 23, 2019 9:07 pm

Thanks again. I will consult with an attorney regarding succession rights.
The form "Notice To Owner of Family Members Residing with The Named Tenant..." has been
filled out three years ago and mailed to the LL via registered mail.

Thank you.
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Re: Returned rental checks

Postby TenantNet » Wed Oct 23, 2019 11:44 pm

I assume you mean certified mail (not the same thing as registered mail). Search through the forum on succession -- it's been discussed many times. Take note of where the tenants made mistakes, like when the TOR moves out years beforehand and the sons/daughters who are still living there have been sending in leases and rent with the parent(s) signature on it.

Make sure you have oodles of evidence of your presence in the unit over the years and there are no sizable gaps (other than a few permitted absences like military duty or being away for college).
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Re: Returned rental checks

Postby July5 » Thu Oct 24, 2019 1:27 pm

Thank you. Will do.
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Re: Rent Control Apt

Postby July5 » Tue Nov 05, 2019 1:02 am

Living in a rent control apt. I went to get advice in a tenant forum about succession. One question I have is having a vacation rental. My father and I visit this place on weekends during the summer. We are very much established in NY (paying taxes, banking etc). Is having a summer vacation place a violation with living in a rent control apt? I was told (by an attorney) that where you pay your taxes, place of employment, where you bank, bills, is what matters.
Any thoughts?
Thank you
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Re: Returned rental checks

Postby TenantNet » Tue Nov 05, 2019 4:48 am

It's not a problem. For primary residency (which is the issue in your question), tenants must actually live in their apartments for 183 days/year. To us that means sleep there. I don't think you're anywhere close to being away 6+ months.

The is nothing wrong or illegal about having a vacation rental, or even owning a vacation home as long as you maintain your primary residence in your RC/RS unit.

Courts often use a variety of evidence to establish that, including where taxes are filed, voting registration and so on. You can show actual location by any number of methods, such as affidavits/testimony from neighbors, electrical/gas usage (Con Ed bills), use of local businesses, which is why you should keep all your receipts from your local ATM, grocery and so on to show when you were here. I don't think there is any one determiner - although many people claim taxes is the prime evidence, it's really the aggregate of a bunch of stuff.

So every time you go to a Duane Reade, or your supermarket, keep those receipts. Just get into the habit of obtaining receipts and putting them in a drawer. Once a year, scan them into the computer in some sort of reasonable order. It's really not that hard to do.

Of course the LL would have to make the allegation that you have a primary residence elsewhere. I know RC tenants who spend 2+ months out of the city every summer, and they are still legal.

Poke around the forum ... this gets discussed at length in a number of threads.
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Re: Returned rental checks

Postby BubbaJoe123 » Tue Nov 05, 2019 1:36 pm

Taxes generally tend to become an issue when they support the landlord's claim that the apartment isn't a tenant's residence. If someone's filing taxes as a non-resident, but claiming that a NYC apartment is their primary residence for rent control/rent stabilization purposes, then (with relatively narrow exceptions) they're either violating the rent regulation rules or committing tax fraud.

On the flipside, paying taxes as a NYC resident is supportive, but not definitive, proof that you're a resident for rent regulation purposes. There's no law against paying more taxes than you need to, plus one could be a NYC resident, but not have a particular rent-regulated apartment as a primary residence.
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Re: Returned rental checks

Postby TenantNet » Tue Nov 05, 2019 2:48 pm

Right, in the context of a proceeding or hearing, neither the courts nor DHCR are empowered to look at (much less do anything about) possible tax fraud. While tax filings are important, it's just one ingredient of the overall mix in establishing residency when/if challenged. In the end, one doesn't have to pay taxes or vote in NYC to actually live here.
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Re: Returned rental checks

Postby July5 » Tue Nov 05, 2019 11:59 pm

Thank you for these responses. It's very helpful.
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Re: Returned rental checks

Postby BubbaJoe123 » Wed Nov 06, 2019 8:54 am

TenantNet wrote:Right, in the context of a proceeding or hearing, neither the courts nor DHCR are empowered to look at (much less do anything about) possible tax fraud. While tax filings are important, it's just one ingredient of the overall mix in establishing residency when/if challenged. In the end, one doesn't have to pay taxes or vote in NYC to actually live here.


Certainly, neither the courts nor DHCR are going to do anything about potential tax fraud, but it certainly doesn't help a litigant's credibility when the opposing attorney can ask them "are you perjuring yourself now, or did you perjure yourself when you filed your taxes?"
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