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I am a subtenant, I think the tenant I am renting from is Rent Stabilized and overcharging me. What do I do? Can I collect my overcharge award directly from the landlord?

In Episode 4 we discuss what happens when a Rent Stabilized tenant sublets her apartment to a subtenant and overcharges the subtenant more than the legally regulated rent. The tenant could owe the subtenant the overcharge amount back, plus triple damages. Today’s case is interesting because the DHCR held that the landlord, as well as the tenant, was responsible to the subtenant for the overcharge, even when the landlord did not collect more than the legal rent, based upon the concept of illusory tenancy.

Listen on Apple, Spotify, Google.

Subtenants can obtain a printout of their apartment’s rent registration from DHCR by submitting proof of their identity and occupancy of the apartment ⁠at this link⁠.

Ask us your questions at [email protected].

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Can I gain leverage in Housing Court if my landlord makes a procedural mistake?

In Episode 3 we discuss a Housing Court case that was dismissed because, although the apartment was located on the second floor of a building, the landlord described the apartment as being on the first floor. This leads us to an interesting Tenant Takeaway about how to turn winning a battle into maybe doing better in the overall war!

Listen on Apple, Spotify, or Google.

Ask us your questions at [email protected].

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Was my rent break for my Rent Stabilized apartment a one-time rent concession or a permanent “Preferential Rent”? And should I join a class action against my landlord?

In Episode 2 we discuss the difference between a permanent “Preferential Rent” and a one-time “rent concession” for Rent Stabilized apartments. We also discuss the pros and cons of tenants joining a class action with other tenants against the landlord.

Listen on Apple, Spotify, or Google.

Ask us your questions at [email protected].

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Where do I bring a harassment case against my landlord? An Episode of the Tenant Law Podcast

Welcome to the Tenant Law Podcast, where we talk about new, interesting, and/or important legal cases affecting New York City tenants. This weekly pod will be about 10 minutes long. First, we give you some background, so you have the context to understand the case we are discussing. Then we talk about the case itself. And finally, we explain why the case is important, and give you our Tenant Takeaway!

Listen on Apple, Spotify, or Google.

Episode 1 examines a recent New York City Civil Court case where a landlord attempted to have tenant’s harassment case dismissed because tenant previously brought a case for harassment against landlord in DHCR and lost. We discuss when a court will dismiss a case because it is too much like an earlier case between the parties. We also discuss what factors go in to a Rent Stabilized tenant’s decision about where to bring a harassment case against landlord, at DHCR or in Housing Court.

Ask us your questions at [email protected].

Free Class: “How to Get Repairs and Paint Jobs in Your New York City Apartment” https://tenantlearningplatform.com/courses/the-laws-about-getting-paint-jobs-and-repairs-in-your-nyc-apartment/

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I had to vacate my apartment early, can the landlord sue me for the last six months of rent?

Ira from Astoria asks:

I was a tenant in an affordable housing unit, but I had to move out after six months because there were some type of fumes in the apartment that gave me terrible headaches. My former landlord says I am responsible for the last six months of rent.

What can I do?

Ira

Instructor Michelle Answers:

Pursuant to the Housing Stability and Tenant Protection Act of 2019, the duty for a landlord to mitigate damages applies to all residential leases. Real Property Law § 227-e; 14 East 4th Street Unit 509 LLC v. Toporek, 203 AD3d 17 [1st Dept 2022]. That means that your landlord cannot simply sit on her hands for six months and charge you for the rent. The landlord must actively search for a new tenant. In this housing climate, it is not difficult for a landlord to fill an apartment. This offers you some protection. If the landlord does sufficiently attempt to mitigate and the apartment remains vacant for six months, here are some other thoughts.

Were there HPD violations? Did you send a letter to the landlord, explaining why you left? If you documented this fumes condition, then many landlords would be less likely to go after you.

Did the landlord keep your security? If so, we are now only talking about five months of rent, not six. It often costs a landlord more to successfully prosecute such a lawsuit (for a mere five months’ rent for an affordable unit from a tenant who is gone) than the landlord is likely to recover.

Using this leverage, you could try offering one or two months rent in exchange for a general release. You should not sign anything, however, without talking to your lawyer.

Respectfully submitted,

Instructor Michelle Itkowitz

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Can I inherit my father’s Rent Stabilized apartment?

Scout from Lincoln Square asks:

My father just passed away and my siblings and I are in the middle of cleaning out his Rent Stabilized (or maybe Rent Controlled?) apartment. I do not have a copy of my father’s lease.

Can I move into my father’s apartment and become the Rent Stabilized tenant? Can I somehow get a settlement from the landlord for releasing custody of the apartment? I know someone who did that with her parents’ apartment.

Any advice would be appreciated,

Scout

Instructor Michelle Answers:

If: (1) the apartment was your father’s primary residence before he died (i.e., you had not moved him out permanently to a nursing home); (2) you are the child; (3) you lived with your father in the apartment as your primary residence (which you need to prove with paperwork and sworn testimony under penalty of perjury); (4) for two full years directly before your father died (or one year if some other circumstances apply); then you are entitled to succeed to (inherit) the apartment. All those things need to be true. From your question, I cannot even tell if you live in the apartment, it does not sound like you do.

The story you heard about the kid who got a settlement, that was likely because the kid could check those four boxes above and the landlord was scared the kid might secede to a very low-rent Rent Controlled tenancy. Apartment situations are like snowflakes, no two are ever exactly alike. So, it is not wise to rely upon other people’s apartment stories.

Respectfully submitted,

Instructor Michelle Itkowitz

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Am I still Rent Stabilized if my Building’s 421-a expired?

Ethan from Bay Ridge asks:

I’ve been living as a 421A Rent Stabilized tenant here in Brooklyn for the past 16 years. I was the first tenant to move into this apartment after the building was constructed. I just got my lease renewal and was very surprised because it was a whole different format from all my earlier renewals and the rent increase was 12%. I called the management company who told me that the 421A tax break had expired and I am no longer Rent Stabilized.

Can you help me out,

Ethan

Instructor Michelle Answers:

It depends on which version of 421-a your building was subject to. Given the age of the project, I am going to assume that your building’s 421-a is that type where Rent Stabilization does expire at the end of the tax benefit. But you should not assume anything, you should check with a lawyer. Then the next question is, did your landlord include the correct rider in every one of your renewal leases over the years?

New York Real Property Tax Law (“RPTL”) § 421-a was enacted in 1971 to spur new construction of residential units through a 10-year tax abatement. In return for the tax exemption, landlords needed to submit to Rent Stabilization for the duration of the tax-benefit period, even when a building is constructed after January 1, 1974, and would otherwise be exempt from rent regulation. RPTL § 421-a(2)(f); Gramercy North Associates v. Biderman, 169 A.D.2d 345 [1st Dept 1991], leave to appeal denied, 78 NY2d 863 [1991]. In earlier versions of the program, deregulation may occur upon the expiration of a tenant’s lease after the tax benefits expire, provided the tenant’s initial lease and each renewal thereof contained a notice in at least 12-point type informing the tenant that the unit’s protected status would eventually lapse.

If, however, the landlord did NOT include the correct rider in every one of your lease renewals, then you may be able to remain in the apartment as a Rent Stabilized tenant, with a Rent Stabilized rent, for the rest of your life. You really need to see a lawyer familiar with Rent Stabilization on this one.

Respectfully submitted,

Instructor Michelle Itkowitz

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Tenant Question: Help! My Landlord Started an Eviction Case Against Me for Doing Airbnb in My Apartment

Hannah from Roosevelt Island asks:

My landlord is suing to evict me because I did some Airbnb. Although I’ve been a full-time tenant, I have occasionally rented out the apartment on Airbnb and other sites. This past Fall my grandmother took ill, so I spent a lot of time back and forth to England, where my family is. At the same time, my job allowed remote work. So, to help pay my rent and because I was traveling so much, I took on a lot of short-term guests.

The landlord recently sent me a notice to terminate my tenancy with printouts of my Airbnb profile and the apartment listing attached. Then the landlord began a holdover proceeding, seeking to evict me. As soon as I got the termination notice, I immediately stopped short-term rental activity. I called the landlord repeatedly to discuss the issue and sent a letter with an affidavit confirming that all short-term rentals at the apartment had stopped and apologizing for the transgression.

Here is my question, why is no notice to cure required? Don’t I get a chance to cure; to fix it? To stop doing short-term subleasing and resume my tenancy?

I wish I had seen your Tenant Learning Platform Class on How To Do Airbnb Legally in Your NYC Apartment before I went down this road.

Better Late Than Never,

Hannah

Instructor Michelle’s Answer:

First, before I answer the question, you made a terrible mistake by sending the landlord that affidavit. You basically admitted to the behavior for which the landlord is terminating you. That was not a smart thing to do before speaking to a lawyer. I understand the landlord apparently already has your Airbnb profile. But that alone might not be enough to prove landlord’s case in court. You can learn a lot more about that in How To Do Airbnb Legally in Your NYC Apartment. Now to answer the question…

It depends. You did not indicate whether you are a Rent Stabilized tenant. If you are Rent Stabilized, then the sin of Airbnb is less about illegal short-term leasing (which might be curable) and more about profiteering, which is very much not curable as per appellate case law. The definition of “profiteering” is beyond the scope of this answer, but is covered in great detail in How To Do Airbnb Legally in Your NYC Apartment. So, first I would have to know whether you are Rent Stabilized and, second, I would need to see what basis the landlord used for the termination. Some landlords use nuisance as a basis for an illegal short-term leasing termination and nuisance also does not require a notice to cure because nuisances are deemed incurable. Other landlords use a violation of a substantial obligation of the tenancy, which typically would require a notice to cure. The bottom line is that you never want to be where you are, having to seek out a lawyer to figure out the intricacies of a lawsuit and possible defenses thereto. You really need to speak to your lawyer immediately about the current case against you. Then, take the How to Do Airbnb Legally in Your NYC Apartment course and hopefully you can make better decisions in the future on this topic.

I am ethically obligated to say the following. No attorney and client relationship is established because I have answered your question. It is obviously impossible to fully assess the matter this quickly. The above is not actionable legal advice. Therefore, you should NOT rely upon any legal opinions provided by me in this post concerning any matter.

Respectfully submitted,

Instructor Michelle Itkowitz

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Protect Your Security Deposit

Did you know your landlord in New York State can only ask you for one month of security?! Or that your landlord in New York State must respond to you on the return of your security deposit within fourteen days of you moving out?!

Tenant Learning Platform’s series of TikTok’s on security deposits is really hot (almost 23k likes!)

Security Deposits in NYS Can Only Be One Month’s Rent

If you live in New York, your landlord may NOT take more than one month of rent from you for any kind of security deposit or advance!

That means if the landlord says, “I need two months security from you”, that’s illegal.

If the landlord says, “I need one month’s rent as security, and you need to pre-pay the first and last month’s rent” that is illegal too.

If the landlord says, “Oh in addition to the one-month security deposit, I need a “cleaning fee deposit” for when you leave. NOPE – illegal.

This is true in NY if you are in a luxury apartment of a Rent Stabilized apartment and everything in between. This is true in NY even if you just rented an apartment for a few months on Airbnb.

NYS General Obligations Law § 7-107 was amended so that, “No [residential] deposit or advance shall exceed the amount of one month’s rent under such contract.”

In NY you do not need to give the landlord more than one month’s rent in advance as security or for any other purpose. 

Landlords Must Respond to Tenants Re Their Security Return Within 14 Days of Tenants Moving Out

In New York, within fourteen days after you move out of your apartment, the landlord must provide you with a written statement, telling you she if intends on keeping some or all of your security deposit, including an itemized list indicating how you damaged in the apartment. If a landlord fails to provide you with this statement and the remaining amount of the deposit within fourteen days, the landlord forfeits any right to retain any portion of the deposit, no matter how you left the apartment.

NYS General Obligations Law § 7-108(1-a)(e) states:

“Within fourteen days after the tenant has vacated the premises, the landlord shall provide the tenant with an itemized statement indicating the basis for the amount of the deposit retained, if any, and shall return any remaining portion of the deposit to the tenant. If a landlord fails to provide the tenant with the statement and deposit within fourteen days, the landlord shall forfeit any right to retain any portion of the deposit.”

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Getting Your Landlord To Take You Seriously!

Recently, TLP  Instructor Michelle Itkowitz was interviewed for a national  article entitled,   “Worried your landlord is taking advantage of you? Here’s how to make them take you seriously!”, in hellogiggles. Below are some of the tips Michelle shared with Morgan Noll for the article.

Tips for Woman-Renters When Dealing with Male Landlords

(1) Know your basic tenant’s rights before you have a conversation with your landlord.

The number one way for woman tenants (or men tenants!) to have successful interactions with their male (or female!) landlords, is for the tenant to know her rights.

Many landlords are good people. But some are not. And a bad landlord will try to take advantage of the knowledge gap between himself and his tenant. Your landlord does housing all day long. It is his business to know the laws and rules about tenant’s rights. You, however, may never have had a bad housing situation, and, therefore, you have no reason to know the finer points of tenant’s rights.

Therefore, the first thing you should do is educate yourself. Shameless plug, that’s what we made the Tenant Learning Platform for, so that tenant’s could educate themselves for a low cost, without a lawyer, and without scouring the internet for piecemeal, dated, and conflicting information. But if the topic you need to brush up on is not something we have a class on in your jurisdiction, then by all means, scour the internet. Read recent articles on tenant’s rights in your geographic area. Other good resources are the websites of your local government agencies that deal with housing and free legal services providers in your neighborhood.

The more educated you are before a conversation with your landlord, the less likely the landlord is to be dismissive of you.

Before a lease renegotiation, check if in your jurisdiction. Here in New York State, for example, your landlord needs to give you a certain number of days’ notice before refusing to renew your lease or raising your rent more than 5%.

(2) Do not be afraid to ask questions and do not be pushed into quick decisions.

That first tip, however, does not mean that you should pretend to know things that you do not. If the landlord says something, and it does not sound right to you, question it! There are no dumb questions.

Recently, I had a tenant client whose landlord told her she had to sign a paper he was putting in front of her immediately, or she would soon be evicted. The landlord was lying. The tenant, however, was intimidated and signed the paper. Unfortunately, the paper said that she was waiving important rights. Fortunately, I was able to eventually get her rights back for her.

What she should have done was said, “OK, Mr. Landlord, I am unfamiliar with this situation. I am going to investigate my rights and get back to you by Wednesday of next week.”

(3) If there is a male roommate or partner in the apartment, you should be the point person with the landlord.

If the husband, the boyfriend, or the male roommate does the initial talking with Landlord…well…the landlord might perceive that this is who is in charge of the housing situation. Consider that it might be a better division of tasks for the woman to be the point person with Mr. Landlord.

(4) Keep interactions brief and professional, you have other things to do!

One of the first things I look at when tenants come to me with a landlord problem is her email or text exchanges with the landlord. Often, I don’t know how else to say this, the tenant is just too nice to the landlord. I am going to give you a real example below, cut and pasted from a real exchange.

“Good morning Andy,

I hope you are doing well and trust you’re ready for the weekend. I know I am. It’s been a long week.

I was wondering if you could tell me when we might be receiving a copy of the lease for our records? I know you said you would be sending it via email, but I wasn’t sure if it should be coming this week or next.

Also, thanks again for having a cleaner come clean the apartment. I appreciate that more than you know.

Sincerely and with kind regards,

Jane”

I would advise tenants that the above email should have gone more like this:

“Andy,

Please send a fully executed copy of our lease for our records. You said you would send it by pdf in an email.

Your cleaner cleaned the apartment. Thank you.

Jane”

(5) It’s your home. Do not take no for an answer when it comes to repairs and services.

The laws everywhere say that you are entitled to an apartment that is in habitable condition. There should never be conditions endangering your health or safety.

Know your rights, and if the landlord does not effectuate repairs in a timely fashion, then take things to the next level. In NYC the next step is to dial 311 and a City inspector will come and place a violation against the landlord if the apartment is not being maintained according to the NYC Housing and Building Code. If you want to know more, check out this Tenant Learning Platform class on getting repairs in your apartment.

If you complain to the landlord about needing repairs, the landlord does nothing, and you don’t take things to the next level, then you are just sending a message to the landlord that it is ok to ignore the need for repairs in your apartment. If you are not going to stick up for yourself in this world, who will?!