Landlord and Tenant

July 21, 2014

Access to Building Services in Rental Units in New York

A recent news story regarding affordable housing in New York may be of interest to readers of our blog. New York City’s Department of Housing Preservation and Development (HPD) approved a separate entrance in a proposed new building containing affordable housing units. The building would therefore have two entrances (it is located on a corner lot), one for the luxury units, and one for low-income units that would comprise 55 of the 219 proposed units.

Of course, many people are outraged by this “poor door,” arguing that it imposes a stigma on the low-income renters in the building. Others may argue that separate entrances should be allowed as the price for the builder to include these low-income units, which may not have otherwise been part of the proposed project. Including these low-income units in the project allows the builder to construct an edifice larger than that which would have been allowed if the building only contained luxury units. It also entitles the developer to certain tax breaks for providing “affordable housing” to the residents of New York City.

The issue of whether all residents of communal housing, such as an apartment building, are entitled to share in all of the building’s amenities can create additional legal challenges. A building in the Chelsea neighborhood of Manhattan has an indoor swimming pool, a rare sight in Manhattan. There are several buildings with access to the pool, known as London Terrance Towers and London Terrace Gardens. However, these buildings contain co-op apartments, which are owner-occupied, as well as rent-stabilized units, which are not. Under an expiring agreement, between the landlord of the Gardens buildings and the cooperative corporation, the renters were allowed to use the pool.

July 10, 2014

Buyouts Between Landlords and Tenants in New York

By Weiss & Weiss

A recent article in the New York Times discusses the issue of landlords making cash offers to “buy out” tenants of their rent regulated tenancies. Our firm has handled these situations, representing both landlords and tenants in different transactions regarding such buyouts.

The reason behind such offers is the rent regulation system currently in place in New York City. Many, but not all, apartments in New York are subject to rent regulation. Rent regulation applies to apartments renting below a certain amount, but does not apply to rentals of a condominium or cooperative unit by its owner. Whether an apartment may be subject to rent regulation is a complicated issue and can be the subject of additional legal proceedings, with which our firm also has extensive experience.

Once an apartment is subject to rent regulation, a tenant residing therein has certain legal rights regarding their tenancy. The first right is the amount of the rent paid by the tenant. This amount is determined by an extremely complicated formula, in which the following factors are taken into account: the rent paid by the prior tenant, increased by a “vacancy allowance,” plus increases may be allowed for improvements made by the landlord to the apartment, such as the installation of new appliances, new windows, and so forth. Renewal leases are subject to particular limited on rent increases determined annually by the Rent Guidelines Board.

May 22, 2014

Enjoy Your Vacation Home this Memorial Day Weekend

By Weiss & Weiss

Memorial Day weekend is eagerly anticipated by many of our readers, especially this year after the harsh winter that we endured. Fortunate travelers expect to enjoy their vacation homes this weekend. As you head out for the weekend, we wish to remind you of certain legal issues pertaining to vacation homes.

Some vacation homes were financed by the use of reverse mortgages . Once the borrower dies or does not occupy the home for another reason, the lender may seek to collect the remaining unpaid principal balance, require the home to be sold or foreclose on the property. Since vacation homes are secondary homes, obtaining a mortgage modification, if necessary due to the financial circumstances of the borrower, is not a certainty. We are available to assist our clients in foreclosure defense should it become necessary.

Sometimes a vacation home is inherited by more than one adult child. In this case, maybe not all of the record owners contribute to the expenses of the house or even use the house. Our firm has been engaged in partition actions on behalf of its clients to alleviate this situation.

April 24, 2014

“Self-Help” and Legal Representation in Foreclosure and Landlord-Tenant Matters

By Weiss & Weiss

Our firm often receives inquiries from potential clients, many related to foreclosure and landlord-tenant matters. Often, an individual will inform us that they have been representing themselves in a Court proceeding, or are considering doing so, and will question us as to whether an attorney is necessary.

In New York State, individuals are generally permitted to represent themselves in Court proceedings, without an attorney. One exception to this is a corporation. Even if an individual is the sole owner of a corporation, corporations must generally be represented by counsel when they are a party to a litigation proceeding.

However, simply because an individual may representative herself in Court, does not mean that this is the best decision when confronted with an adversarial proceeding concerning potentially sophisticated legal issues, such as a foreclosure proceeding, or landlord-tenant matter. Many of the people who make inquiries to our firm will ask what benefit is gained from hiring an attorney, especially since there is an increased cost involved when attorney’s fees are incurred.

March 12, 2014

Every Hoarder Needs a Clutter Reduction Program

By Weiss & Weiss

Our readers may have read a recent article in The New York Times concerning a compulsive hoarder (or “collector”) and his struggle to clean out his rent-stabilized apartment in order to avoid eviction. While this situation is so notorious that it even became the subject of an episode of the television series “Hoarders”, unfortunately the issue is not uncommon. This blog post will discuss hoarding in the context of a cooperative or condominium building and the legal remedies that the cooperative or condominium board has to preserve the standard of living of the building’s residents.

Hoarding is more than a personal problem for a shareholder or unit owner. The board’s response needs to take into account more than merely trying to give the unit owner a clutter-free existence. The real concerns behind a neighbor’s hoarding are as follows. Hoarding can be a symptom of mental illness. In some cases this author, on behalf of a cooperative board, has needed to inform the shareholder’s next of kin of a potential mental illness that needs to be addressed or has commenced guardianship proceedings to have an individual appointed as guardian of the shareholder to promote the person’s safety and well-being.

Article 81 of New York State’s Mental Hygiene Law governs the procedure for appointing a legal guardian for an adult, as may be necessary to provide for personal needs (such as health and safety) and/or to manage financial affairs. Usually the Supreme Court in the county in which the alleged incompetent resides is the forum for the hearing and trial, but in some cases the Surrogate’s Court in the same county can adjudicate the matter if it is in the context of an already existing estate proceeding. The Court may appoint a guardian if there is clear and convincing evidence that the person will suffer harm because he is unable to provide for his personal needs and/or property management and the person cannot understand the consequences of such inability. The guardianship procedure can be brought by “a person otherwise concerned with the welfare of the person alleged to be incapacitated”. Such a proceeding is commenced by Petition and Order to Show Cause, personally served upon the alleged incompetent. An independent court evaluator is appointed to determine the person’s ability to manage the activities of daily living, ability to manage one’s own financial affairs, and the necessity of appointing a guardian. After a trial or hearing, the Court may appoint a guardian to handle the affairs of the incompetent, who must undergo training, post a bond and file reports with the Court at regular intervals.

January 30, 2014

Non-Compete Clauses in Commercial Leasing

By Weiss & Weiss

464 PG 02.JPG A prior blog post discussed the legal issues relating to the sale of a business or professional practice. One issue mentioned in that article was that of a non-compete clause. This blog post will discuss that issue in further detail as it applies to commercial leasing.

As a great deal of commercial space in the New York metropolitan area involves shopping centers and strip malls in which the stores are in close proximity to each other, a non-compete clause may be essential for a tenant. A non-compete clause in a commercial lease involves an agreement between the landlord and the potential tenant that the landlord will not rent space to a competitor of the tenant, or to a business that draws the same customers who may choose to do business with one tenant as opposed to another. A non-compete clause also comprises the tenant’s promise not to engage in particular business activities. For example, if the tenant sells office supplies, then the tenant may ask for a clause in their commercial lease by which the landlord is prohibited from renting any space in the same shopping center to another store that sells office supplies. In subsequent leases with new tenants, the landlord needs to include the prohibition from selling office supplies so that new tenants do not violate the landlord’s promise to the office supply tenant.

Of course, it is essential that such a clause be drafted with specificity and contain language sufficient to make it clear which competitors, specific activity and types of businesses are prohibited. For example, using the office supply example above, a non-compete clause must be very specific in the types of sales that are prohibited. Many establishments such as grocery stores and drugstores sell items such as writing implements and stationery, even though it is not their primary business. A non-compete clause should be crafted for the specific inventory of the store in question while also providing the business with opportunity for growth and change in inventory as needed.

November 14, 2013

Eviction Actions After Foreclosure in New York State

By Weiss & Weiss

Some of our prior blog posts have dealt with the legal issues relating to foreclosure prosecutions and defenses in New York State. As discussed in these posts, foreclosures are legal actions in which a mortgage holder will legally obtain title to real property from a defaulting borrower. After obtaining a foreclosure judgment, the property is auctioned to the highest bidder, which is usually the lender bringing the action. The Referee will then prepare a Referee’s Deed transferring title to the successful bidder.

One question that often arises is when the owner continues to occupy the foreclosed property, or when there are tenants in the foreclosed property. What happens to these occupants when the foreclosure procedure is complete and title is transferred? There are several answers to this question.

When the original owner continues to live in the property after a lender has obtained title by a Referee’s Deed in foreclosure, the new owner must take legal action to evict the occupant. In New York State, such evictions can be accomplished under New York Real Property Actions and Procedures Law § 713. This section provides grounds for eviction “where no landlord-tenant relationship exists.” Subsection 5 provides that if the property has been sold in foreclosure, then a certified copy of the deed in foreclosure must be exhibited to the persons to be evicted from the premises.

October 21, 2013

Rent Stablization and Bankruptcy in New York State

By Weiss & Weiss

An article in today’s New York Times discussed a case currently pending before the United States Court of Appeals for the Second Circuit. The litigation discussed involves a rent stabilized tenant who filed for Chapter 7 personal bankruptcy. Although the details of bankruptcy law are beyond the scope of this post, Chapter 7 bankruptcy involves a liquidation of the debtor’s assets, and will extinguish most debts of the debtor, making them uncollectible by the creditors.

In this case, the debtor filing bankruptcy was a tenant in a rent stabilized apartment. Rent stabilization is a type of rent regulation in larger cities in New York State that fixes the rent which a landlord may charge to tenants. It is most prevalent in New York City, but not every apartment will qualify for rent stabilization protection. For example, when one rents a cooperative apartment from the owner, rent stabilization will not apply. In addition, tenants whose income level exceeds a certain threshold may be disqualified from rent stabilization protection.

Rent stabilization protects the tenant in several ways. First, it limits the annual amount by which a landlord may increase the rent for the apartment. This amount is set each year by the Rent Guidelines Board, and their decisions are subject to annual predictable controversy as tenant groups lobby for smaller or no increases, and landlord groups request larger increases. Secondly, a tenant in a rent stabilized apartment is legally entitled to a lease renewal when their current lease expires.

July 12, 2013

Turn Down the Music

By Weiss & Weiss

New York City’s population density inherently gives rise to noise complaints by cooperative neighbors. The New York Post reported today about a lawsuit filed by a cooperative shareholder against his neighbor for unreasonable noise caused by his neighbor’s piano playing. This blog entry will discuss the various issues raised by this lawsuit.

Cooperatives are legally formed upon the acceptance of its Offering Plan for filing with the Real Estate Finance Bureau of the New York State Attorney General’s Office. The cooperative’s Proprietary Lease and House Rules would be included in its Offering Plan. At the closing, the shareholder signs the Proprietary Lease and House Rules, agreeing to the terms thereof. The Proprietary Lease contains the provisions by which a shareholder has the right to occupy a particular unit and the regulations governing such occupancy, such as the obligation to pay maintenance, sublease rules and rights to transfer the unit. House Rules contain specific itemized rules such as where packages may be delivered, laundry room rules, move-in and move-out regulations, and rules governing which elevator can be used for freight or pets. If the House Rules are violated, such a breach is deemed to be a violation of the Proprietary Lease. The Proprietary Lease contains provisions for the cooperative’s board’s response to a default, typically commenced by the service of a default notice, which may result in the service of a termination notice.

Most Proprietary Leases contain a clause prohibiting a shareholder from making unreasonable noises. Likewise, the House Rules governing many cooperative buildings commonly prohibit the playing of musical instruments between the hours of 11:00 pm and 9:00 am. Once a shareholder finds the noise to be unreasonable, he should bring the matter to the attention of the board of the cooperative, encouraging the commencement of a default procedure against the offending shareholder under the objectionable conduct provisions contained in the Proprietary Lease. Should the Board remain unresponsive, the shareholder may need to commence a lawsuit against the cooperative for failure to enforce the governing documents and against the shareholder who is continuing to make unreasonable noise.

May 30, 2013

Renewal of Residential Leases in New York

By Weiss & Weiss

Our firm often fields inquiries from clients regarding residential lease situations. One common question relates to the right to renew an existing lease. This blog post will explain certain conditions which may apply to the renewal of a lease after it expires.

We are first assuming that there is a written lease between the landlord and the tenant for the premises in question. If a tenant takes possession of the premises without any written lease whatsoever (this situation arises more than one would expect), then the tenancy is considered a month-to-month tenancy. This means that either party may terminate the tenancy by giving one month’s notice to the other party. For this reason, a written lease will protect both party’s interest in the tenancy.

A written lease between the landlord and tenant will generally be for a specific period of time. Many leases run for multiple years, such as two, three, or even five year terms. Smaller premises or those for cooperative or condominium apartments may rent for only one year. The question we are asked is what rights the tenant may have to a renewal lease after the lease term expires.