One of the best frequently asked questions about activity in a Sandy-affected architecture has been this: do tenants of barrio in Zone A charge to pay their hire for the time they’ve been evacuated? We offered some basic admonition on this over the weekend, and we’ve aback accomplished out to absolute acreage advocate Adam Leitman Bailey for added information. It turns out we’re not the alone ones allurement questions, and Bailey beatific forth a Q&A he’s able for afflicted tenants. Here now, an absolute lawyer’s answers to some of the questions we’ve been getting.
Is the addressee advantaged to a acknowledgment of the aegis drop in a storm damaged or destroyed apartment?
The freeholder is alone accustomed to abstract from the aegis drop for tenant-caused accident and hire that should acquire been paid. In best of the Sandy cases, it will be adamantine to appearance that the accident was acquired by the tenant, but whether the hire should acquire been paid will be a catechism of whether the addressee absolutely had to alive in a abominable accommodation or had to move elsewhere.
What if the addressee is accustomed aback in the architecture afterwards a anniversary or less?
Under about all leases, the charter would be in abounding force, but the addressee would be advantaged to a hire acclaim for anniversary of the canicule of afflicted absence.
Does the freeholder acquire to pay for the tenant’s auberge or added emergency accommodations?
No, the freeholder does not acquire to pay for the tenant’s hotel, emergency accommodations, or bistro out expenses.
Can the freeholder be accountable to acclimation the building?
In both adapted and able buildings, tenants who are afflicted out of the architecture by storm accident can bulldoze the freeholder to acclimation the architecture by bringing an HP activity in the Housing Court. While such affairs can bulldoze the freeholder to restore the building’s adeptness to acquire utilities (safe wiring, safe plumbing, etc.), it cannot bulldoze the annual companies to restore those utilities. In some acutely attenuate cases, the freeholder can affirmation “economic infeasibility” by assuming that the amount of acclimation the architecture would beat the amount of the architecture already restored. Courts admit this article but are acutely adverse to it and accumulating acceptable affidavit of it is both big-ticket and difficult. Tenants can additionally alarm in the City’s Department of Barrio to abode violations for storm accompanying failures of the building’s anatomy (such as sidewalks burst up by collapsed trees). Such things are prosecuted afore the Environmental Control Board (the ECB), rather than the courts. Generally, afore the ECB, alone the owners and the City participate in the hearings, but the ECB can acquiesce addressee testimony. In the approved courts, the tenants frequently testify.
Is there any aberration in the law amid how adapted and able apartments are handled aback the addressee cannot alive there because of storm damage?
Rent acclimation makes about no aberration in the acknowledged analysis of storm damaged or destroyed apartments. In able apartments, the charter may accord the freeholder the advantage to aish the charter in the accident of austere accident to the accommodation or the architecture in which the accommodation is located. However, in adapted apartments, such clauses are about absolutely unenforceable. Normally, if there is austere accident to the building, New York State’s Division of Housing (the DHCR) will acquiesce the tenants to move abroad briefly and pay hire at $1/month to ascendancy on to their tenancies post-reconstruction.
What if a architecture is accountable to a abandon order?
In adapted buildings, the hire gets bargain to $1/month. In able buildings, the hire goes to aught and, if the charter allows, either affair can aish the lease.
What if the addressee won’t be accustomed aback in the architecture for a ages or more?
Under about all leases, the charter would be in abounding force, but the addressee would be advantaged to a hire acclaim for anniversary of the canicule of afflicted absence, but if the architecture can be anchored up in a month, the addressee may not be accustomed to breach the lease. However, beneath abounding leases, if it would booty the freeholder a ages or added to fix the building, the freeholder may be advantaged to aish the lease.
Does the freeholder acquire any albatross for accident of amount of the accommodation due to the storm accident or due to the apartment’s now credible vulnerability to storms?
Neither in a accepted rental nor in a accommodating will any accident of amount of the accommodation accomplish any aberration in the bread-and-er responsibilities of the parties in about all cases. The one abode area this may accomplish a aberration is in apartments anew entering the hire stabilization arrangement for any acumen (decontrol, J51, 421-a, etc.) area a new hire has to be set at fair bazaar amount for that neighborhood, the tenants may be able to altercation the ascendancy of the proofs of commensurable rents in the adjacency by proving that due to the furnishings of Sandy, that adjacency could no best command those rents.
Does the addressee acquire to pay hire for the aeon the addressee is sitting in an accommodation with no electricity and no heat?
In both adapted and able buildings, the claim to pay hire in a beneath than absolutely anatomic accommodation is on a sliding scale, not an on/off switch. Unless the parties can accede to an adapted dollar acclimation to the hire while the accommodation or architecture is actuality repaired or while assertive utilities are shut down, it will be up to the Housing Cloister (principally, but it could be added courts, alike including Small Claims) to amount out how abundant is a reasonable discount. If the accommodation is both abstract and the addressee absolutely goes about abroad during the aeon of unusability, the courts will acceptable acquisition that the addressee is advantaged to complete hire absolution on a per diem base for that aeon the addressee is absent. If the accommodation is essentially unusable, but the addressee is still active there anyhow, the cloister will acquire to actuate a reasonable allotment bottomward acclimation to the hire for the afflicted period. Some outages are adequately anticipated from the case precedents: 25% for abridgement of hot water, 25% for abridgement of heat, 50% for abridgement of electricity, 10% for burst windows, 10% for adhesive accident from baptize penetration, and so on. None of these abstracts are adamantine and fast.
Is the freeholder accountable for accident to the tenant’s acreage acquired by the storm?
Generally speaking, the freeholder is not accountable for accident to the tenant’s acreage acquired by the storm. However, there is an barring for altitude of which the freeholder had apprehension that were abnormal above-mentioned to the storm, altitude that accustomed the storm to do accident aback a able accommodation would not have. Examples of this are missing window panes and façade brick assignment damaged to the point that the exoteric walls of the accommodation were already adulterated above-mentioned to the storm.
Can the freeholder aish the lease?
In adapted apartments, the freeholder cannot aish the charter except beneath aberrant circumstances. In able apartments, it depends on the diction of the lease. While some of the Bailey/Treiman residential leases (blumberglegalforms.com/Forms/56.pdf, blumberglegalforms.com/Forms/59.pdf, and blumberglegalforms.com/Forms/62.pdf) at branch 32 acquiesce the freeholder to aish the charter if the accommodation is absolutely or partially abstract and addressee may aish the charter if it becomes absolutely unusable, not all leases accommodate such a clause. In able apartments, there is no agnosticism that the freeholder can consistently accomplish these clauses. There is such a article in branch 21 of abounding Absolute Acreage Board leases. There are added leases frequently used, but these are amid the best common. Different anatomy leases acquire altered clauses. In adapted apartments, the exact affairs of the case will actuate whether the courts (and DHCR) will or will not acquiesce the freeholder to accomplish these clauses.
Can the addressee aish the lease?
In both adapted and able apartments, this depends on the agreement of the lease. In Bailey/Treiman leases and some Absolute Acreage Board leases, the addressee can alone aish the charter if the accommodation is fabricated absolutely abstract or is not repaired aural thirty days.
What if there is no lease?
In an able accommodation after a lease, the freeholder has to accord 30 canicule apprehension to aish the control in New York City or one month’s notification alfresco the City. Inside the City, the addressee has no obligation to accord notice, but alfresco the City the addressee charge acquaint the freeholder one agenda ages advanced of time.
Should the addressee escrow the rent?
There is no acknowledged ascendancy for a addressee to escrow the rent. However, declining to do so beneath some affairs could be a austere mistake. If the freeholder is about amenable and appears to be an honest businessperson, the addressee can artlessly pay the hire and if the parties cannot accede on an adapted answer to it, the addressee has the advantage of activity to Small Claims Cloister to balance it. While the addressee could apparently debris to pay the aing month’s hire in acclimation to balance the loss, this would be a actual bad idea. Provoking a accusation would appearance up both on the tenant’s acclaim address and control history, authoritative it difficult to hire about else. If the freeholder has ahead accurate capricious or unethical, the addressee could accomplish the accommodation to abstain the hire at the accident to acclaim appraisement and control history, but although it won’t advice with either of these ratings, agreement the funds in an escrow annual could acquire the benign furnishings of (1) not accepting bent abbreviate in the accident the cloister finds that the money is owed and (2) acceptable the freeholder that the money is there an accessible and that negotiations should artlessly advance in acceptable faith.
Click through for added Q’s and A’s.· Post-Sandy Landlord-Tenant Questions and Answers About Your Apartments [alblawfirm.com]· Can Landlords Charge Hire While Barrio Are Uninhabitable? [Curbed]· Curbed’s Up-to-the-Second Guide to Zone A Architecture Rebirth [Curbed]
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