[NYtenants-online] [NYtenants-online] NY Tenants Online 5/12/03

[Tenant]

NYtenants Online/TenantNet                                 5/12/03
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IN THIS ISSUE ...

1. Those Duplicate Newsletters

2. Housing Notebook Special - Tonight from 7 - 9 P.M.

3. After Albany ... This Time We Throw Down in Our Hometown!
   (also in Spanish with downloadable flyers)

4. A Renter's Primary Residence (Times)

5. Paying Interest on a Security Deposit (Times)

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THOSE DUPLICATE NEWSLETTERS

Our apologies for last week's duplicate newsletters. Seems our server was
having a bad hair day (or perhaps squawking at the notion of higher rents.
Although we sent only one copy of the newsletter out, something happened
that caused multiple copies to be sent. Since then we've re-built our
newsletter software from a backup and we hope it won't happen again.

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HOUSING NOTEBOOK SPECIAL -- Tenant Lobby Day Preview
Rent and Eviction Protections Under Attack
Monday, May 12, 7:00 - 9:00 p.m.
WBAI 99.5 FM www.wbai.org
(article provided by Housing Notebook)

Rent and eviction protections for over 2 million New York apartments are
set to expire on June 15, 2003. Since 1997 nearly 90,000 apartments have
been deregulated in New York City and the landlords want more! While the
clock ticks on these vital protections, Albany is enmeshed in a high-
stakes political budget battle which will no doubt adversely affect
people's ability to pay their rent.  Renewing rent stabilization and rent
control laws, which were severely weakened by the Governor, State Senate
and Assembly in 1997 has yet to even hit the legislative radar screen in
Albany.

In addition, here in New York City Mayor Bloomberg's Rent Guidelines Board
is proposing the highest rent increases for rent stabilized tenants since
1989. Add that to the increases in mass transit fares, the proposals to
increase the sales tax and various other rising costs and homelessness is
sure to rise.

Tenants must organize and fight to preserve their housing. Thousands will
be going to Albany on Tuesday, May 13 to lobby to save our housing. Tune
into Housing Notebook on Monday, May 12 from 7:00 p.m. - 9:00 p.m. (ET)
over WBAI 99.5 FM www.wbai.org and get involved.  Guests include:

- State Senator Liz Krueger (Manhattan) giving the view from Albany of the
political landscape and what we need to do to fight to preserve rent and
eviction protections

- Adriene Holder, Tenant Member, NYC Rent Guidelines Board; Staff
Attorney, Legal Aid Society giving insight and analysis regarding the
proposed rent guidelines and the fight to renew rent control and rent
stabilization.

Housing Notebook is produced and hosted by Scott Sommer of the
Metropolitan Council on Housing (housingnotebook@wbai.org). To reach Met
Council on Housing call (212) 979-0611 for tenant counseling and (212)
979-6238 x6 for info on how to get involved in the fight to save rent and
eviction protections.

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AFTER ALBANY ... THIS TIME WE THROW DOWN IN OUR HOMETOWN!
(informatiuon from Met Council on Housing)

MARCH & RALLY - TRONGER RENT LAWS NOW!
Sunday, June 1,  Noon ­ 2 pm
Union Square in Manhattan:
N/Q/R/W/4/5/6 to Union Sq.

- Eliminate Vacancy Decontrol and the 20% Vacancy Increases
- Protect Section 8 and Mitchell-Lama tenants
- Close the door on “owner use” evictions
- Freeze Rents Now! (RGB Votes on Rent Increases June 19)
- Stop the Rent Guidelines Board from raising stabilized rents
- Eliminate 7.5% annual increases to rent controlled tenants
- Expand the SCRIE program to the disabled and all seniors in need

For more information, to get involved or to endorse contact Met Council on
Housing, 339 Lafayette Street, Room 301, New York, NY 10012, 212/979-6238
ext 6, active@metcouncil.net, www.metcouncil.net

Downloadable Flyers at:
http://www.tenant.net/Alerts/2003/June1flyer.pdf
http://www.tenant.net/Alerts/2003/June1flyerSP.pdf

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¡¡ESTUVIMOS EN ALBANY, AHORA PROTESTAREMOS EN NUESTRA CIUDAD !!

DEMOSTRACIONY  MARCHA
Domingo 1ro. de Junio
de 12 a 2pm
Plaza Union Square en Manhattan
trenes: N/Q/R/W/4/5/6 bajarse en 14th St-Union Square

¡¡MEJORES y MAS FUERTES
LEYES DE RENTA AHORA!!

- eliminen el sobrecargo de  20% cada vez que un departamento se desocupa
- protejan la Sección 8 y los inquilinos de Mitchell-Lama
- paren los desalojos de “uso del dueño”

¡¡CONGELEN LAS RENTAS AHORA!!

- no permitan que la Junta Regulatoria de Rentas incremente las rentas estabilizadas
- eliminen 7.5% de incremento anual a los inquilinos de renta controlada
- expandan el programa SCRIE para los descapacitados y jubilados que lo necesiten

Para más información, para involucrase, ayudar o endosar contactenos Met
Council on Housing, 339 Lafayette Street, Room 301, New York, NY 10012
212/979-6238 ext 6, active@metcouncil.net, www.metcouncil.net

Downloadable Flyers at:
http://www.tenant.net/Alerts/2003/June1flyer.pdf
http://www.tenant.net/Alerts/2003/June1flyerSP.pdf (espagnol)

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A RENTER'S PRIMARY RESIDENCE
By Jay Romano
New York Times
May 11, 2003

A few things are more coveted in New York than a rent-regulated apartment.
And, of course, landlords are generally happy when a rent-regulated
apartment becomes vacant. Every vacancy provides an opportunity for the
landlord to obtain a rent increase, and every increase gets the rent
closer to $2,000 and landlord nirvana: total, final and permanent
deregulation of the apartment.

It should come as no surprise, then, that confrontations between landlords
and tenants can be particularly contentious when it is charged that a
rent-regulated tenant is no longer using his or her regulated apartment as
the primary residence.

Sherwin Belkin, a Manhattan lawyer who often represents landlords, said
that under the current rent laws, protection is afforded only if the
tenant is using the rent-regulated apartment as his or her primary
residence.

Since some people have more than one residence, identifying the primary
residence for legal purposes usually involves more than just tallying up
where a tenant spends his or her time.

Such cases, Mr. Belkin said, may involve the use of private investigators,
covert surveillance and subpoenas of the tenant's private documents and
records. The potential payoff for the landlord, he added, is often enough
to justify the expense.

Mr. Belkin explained, for example, that when a rent-stabilized apartment
becomes vacant, the landlord is entitled to a "vacancy allowance" of
either 18 or 20 percent, depending on whether the next tenant signs a one-
or two-year lease.

Even more significantly, Mr. Belkin said, the landlord can often increase
the rent substantially by making improvements to the vacant apartment.

By law, he said, the landlord is entitled to permanently increase the base
monthly rent by an amount equal to one-fortieth of the cost of the
improvement. So, he said, if an apartment renting for $1,200 a month
becomes vacant, and the landlord gets an 18 percent vacancy allowance, the
maximum legal rent for that apartment becomes $1,416 a month. If the
landlord then spends $23,360 on improvements, he can increase the rent by
an additional $584, bringing the total rent to $2,000.

"That apartment is now exempt from rent regulation," Mr. Belkin said,
adding that if the market rent for the apartment was, say, $3,200, the
landlord will recoup his investment in about one year. "And in five years,
you've made about $100,000," he said. "That's a lot of money."

Mary Ann Hallenborg, a Manhattan lawyer who is publisher of the Landlord-
Tenant Practice Reporter, a monthly journal for lawyers, pointed out that
the fact a tenant is not occupying a rent-stabilized apartment as a
primary residence is not, in and of itself, grounds for immediate
eviction. Instead, she said, it gives the landlord the right to refuse to
renew the tenant's lease.

To terminate a rent-stabilized tenancy in New York City on nonprimary
residence grounds, Ms. Hallenborg said, the landlord must serve the tenant
with a notice of nonrenewal within the 90 to 150 day "window period"
before the current lease expires. The landlord must also serve the tenant
with a 30-day termination notice. (For rent-stabilized tenants outside New
York City, Ms. Hallenborg said, there is some debate as to whether or not
the notice of nonrenewal is necessary.)

For rent-controlled tenants, a notice of nonrenewal is not required. But
the tenant must be served with a 30-day notice of termination stating the
grounds for the termination and the facts the landlord intends to use.

(For rent-controlled tenants outside the city, the landlord must also
obtain a certificate of eviction from the State Division of Housing and
Community Renewal.)

If a tenant does not vacate, Ms. Hallenborg said, the landlord can bring
an eviction action. During that proceeding, she said, the landlord must
prove the tenant is not using the site as a primary residence.

Lucas Ferrara, a Manhattan landlord-tenant lawyer, said courts generally
require the landlord to demonstrate by "objective, empirical evidence"
that the tenant does not maintain "an ongoing, substantial, physical nexus
with the controlled premises for actual living purposes."

David Ng, a Manhattan lawyer who frequently represents tenants, pointed
out that a landlord does not have to specifically identify a tenant's
actual residence. "All the landlord has to show is that you're not using
the regulated apartment as a primary residence," he said.

And, he pointed out, landlords and their lawyers have developed a broad
array of tools with which they can attempt to accomplish that.

For example, he said, landlords will regularly ask a court to order
tenants to produce a number of personal documents that contain the
tenant's address, like driver licenses and registrations, insurance
policies, telephone bills, voter registration cards, utility bills,
banking and credit card statements and city, state and federal income tax
returns.

Listing the address of a regulated apartment on such documents, however,
might not be enough. "The landlord can look at the individual phone calls
you make," Mr. Ng said. A tenant who makes a majority of his or her
telephone calls most days of the week from a second home, for example,
might have a difficult time convincing the judge that the regulated
apartment is the primary residence. Similarly, landlords will also examine
credit card statements to determine the time and location of the various
charges. Landlords will also attempt to determine when and where gasoline
purchases are being made and will check A.T.M. records to determine the
time and location of withdrawals.

"The landlord might also tell a doorman to keep a log of the comings and
goings of a tenant," Mr. Ng said, "or they might hire private
investigators."

Mr. Belkin said that while landlords may have much to gain by bringing
nonprimary residence cases, they may also have much to lose. He explained
that most leases contain a provision making the tenant responsible for the
landlord's attorney fees if the landlord wins, and state law automatically
makes such a provision reciprocal. "That means that if the tenant wins,"
Mr. Belkin said, "the landlord can end up paying the legal fees for both
sides."

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PAYING INTEREST ON A SECURITY DEPOSIT
NY Times Q. & A.
May 11, 2003

Q. I just bought a three-unit building with tenants. Several months after
the closing, a tenant asked about his security deposit and accrued
interest. While the deposit had been transferred to me by the former
owner, it did not include interest. I'm aware that the law does not
require interest-bearing accounts for buildings with fewer than six units.
But the law also states that if deposits were held in interest-bearing
accounts, that interest is due the tenant. Whose responsibility was it at
closing to make sure any interest was transferred? . . . Jim Carden,
Brooklyn.

A. Paul M. Gulielmetti, a Manhattan real estate lawyer, said that the
state's General Obligation Law requires landlords of buildings with six or
more units to place security deposits in interest-bearing accounts. The
state's rent laws, Mr. Gulielmetti said, provide that security deposits of
rent-regulated tenants must be placed in interest-bearing accounts
regardless of the number of units in the building. "And the letter writer
is correct in stating that if deposits were held in interest-bearing
accounts, the interest is due the tenant," he said, adding that that
requirement applies even if the landlord was not obligated to place the
money in such an account.

He said that the General Obligations Law specifically provides that for
security deposits of rent-regulated tenants, a new owner is strictly
liable to tenants for the return of their deposit, plus accrued interest,
regardless of whether the new owner got the money from his predecessor.
And while there is no similar provision in the law covering situations
where the former owner placed a tenant's money in an interest-bearing
account even though he was under no obligation to do so, it would appear
that since the former owner would be required to pay that interest to the
tenant, that obligation would pass to the new owner.

"The courts would likely view the responsibility for obtaining security
deposits and interest earned on them as belonging to the purchaser as part
of his and his attorney's due-diligence obligation," he said.

He added that whenever a security deposit is held in an interest-bearing
account, the landlord is entitled to an administration fee of one percent
of the amount on deposit each year.