Provides for the tenant rights omnibus act to provide for certain tenant and rental property maintenance requirements

Summary of provisions

This bill would authorize localities to establish administrative proceedings, in addition to judicial proceedings, for the enforcement of housing maintenance codes. Administratively imposed penalties would be docketed and enforced in the same manner as a judgement in a civil action without judicial proceedings.

Tenants acting alone or together with other tenants in cities subject to the multiple dwelling law are given the right to repair hazardous violations in their buildings and deduct the cost of these repairs from their rents provided they comply with the following conditions: (1) Notice of the violation by certified mail, return receipt requested, is given to the landlord; and (2) (a) An immediately hazardous "C" violation has been certified by the New York City Department of Housing Preservation and Development (HPD), and seven days have passed since the tenants' written notice was offered for delivery to the landlord without completion of repairs or commencement of repairs and a provision in writing of a schedule for completion of repairs, or (b) A hazardous "B" violation has been certified by HPD and 14 days have passed since the tenant's written notice was offered for delivery to the landlord without completion of repairs by the landlord or commencement of repairs and a provision in writing of a schedule for completion of repairs.

If a tenant or group of tenants repair a violation without hiring an outside contractor, they may deduct costs for materials. If a tenant or group of tenants hire an outside contractor to perform repairs they may deduct charges for materials and labor provided that reasonable efforts are made to have the repair work done by qualified workmen at prevailing rates. If a license to perform the repairs requested is required by law, a tenant or group of tenants must hire an outside licensed contractor.

Tenants must receive a written statement itemizing charges for parts and labor. An individual tenant may deduct a maximum of one thousand dollars or two months rent, whichever is greater. Two or more tenants may deduct a maximum of three thousand dollars, or up to ten thousand dollars if additional notice and an itemized estimate are first given to the land- lord.

The bill would also enable tenants to recover attorneys' fees and damages in cases where landlords act in bad faith to bring eviction proceedings against tenants on the basis of non-primary residence.

Justification

There is a long-held belief in this country that individuals should get what they pay for. In commercial law, if you do not receive what you are promised in a contract, you are entitled to withhold payment for service or materials ordered. This basic right does not exist in landlord-tenant law. Even the Warranty of Habitability Law does not explicitly allow the tenant, on his own, to deduct rent. This bill provides a legal basis for the tenant to withhold rent from the landlord if the Warranty of Habita- bility is breached.

Presently, localities are required to enforce their housing codes through judicial proceedings. Several localities, however, are slow in their enforcement measures and in some cases actions are not taken because the courts are backlogged with summary eviction proceedings. The most glaring example is New York City which has millions of outstanding code violations. The amount of fines owed the City from unenforced violations from scofflaw landlords is substantial. In NYC and other municipalities, lax code enforcement has been exacerbated by severe state cutbacks in support for local governments' code enforcement activities. This bill would simply authorize localities to adopt admin- istrative proceedings as an alternative to court action for the enforce- ment of housing code violations. This alternative could generate substantial revenues as well as preserve and improve the quality of the state's housing stock.

Landlords have increasingly brought court actions against tenants in recent years to eliminate their rent-stabilization protections on the basis of non-primary residence. In many of these cases, however, land- lords have little reason to believe a non-primary residence violation exists and have brought actions as a way of forcing tenants to vacate their apartments, sometimes even ignoring proof submitted by tenants establishing primary residence. This bill seeks to discourage this prac- tice by awarding tenants attorneys' fees and damages in cases where they successfully defend primary residence actions that were brought in bad faith.

Repair and deduct is a logical extension of the warranty of habitabili- ty. It provides an effective remedy for tenants whose landlords do not live up to their legal obligation to keep their premises in good repair. The proposed legislation requires certification of a hazardous violation by HPD and written notice to the landlord before repairs are undertaken. Thus, it assures violations exist, and that the landlord is given ample opportunity to correct the violation. Since many defects worsen over time, it is also in the economic interest of both the landlord and tenants to provide for prompt repair of building violations. The repair and deduct concept has been enacted by statute and judicial decision in more than 20 states. In New York, decisions have affirmed a tenant's

right to repair and deduct where reasonable notice is given to the land- lord and repairs are made at a reasonable cost. Legislation enacted in 1980 allows tenants to buy fuel, and deduct the cost from their rent, provided certain conditions are met. Thus, there is ample precedent for the repair and deduct remedy.

Legislative history

2008: A8268 (Kavanagh) -Housing 2007: A8268 (Kavanagh) - Housing

Fiscal impact on the state

None.

Effective date

This act shall take effect immediately and shall apply to all actions or proceedings pending on or commenced after such date, provided that the amendments to section 26413 of the city rent and reha- bilitation law made by section two of this act shall remain in full force and effect only as long as the public emergency requiring the regulation and control of residential rents and evictions continues, as provided in subdivision 3 of section I of the local emergency housing rent control act and provided further that the amendments to section 26-515 of the rent stabilization law of nineteen hundred sixty-nine made by section three of this act shall expire on the same date as such law expires and shall not affect the expiration of such law as provided under section 26-520 of such law; provided, however, that in any city which has not heretofore made the classifications referred to in para- graphs band c of subdivision 1 of section 302d of the multiple dwelling law, as added by section seven of this act such classifications shall be made within six months of the effective date of such section and such section shall not be deemed to take effect in such city until such clas- sifications are made; provided that the division of h ousing and commu- nity renewal shall notify the legislative bill drafting commission upon the occurrence of the enactment of the legislation provided for in section seven of this act in order that the commission may maintain an accurate and timely effective data base of the official text of the laws of the state of New York in furtherance of effectuating the provisions of section 44 of the legislative law and section 70-b of the public officers law.