Housing Court: and justice for all?

To understand how Landlord-Tenant court is now, it's useful to look back at its history. At one time in the not-too-distant past, tenants had very few rights and privileges. Landlords very much had the upper hand, whether it was a question of ensuring habitability, making repairs and improvements, or getting a tenant evicted.

In the 70s, however, things gradually started to change. With the inception of the Division of Housing and Community Renewal (DHCR) and subsequent modifications of the Rent Stabilization Code, tenants gradually gained more rights. Rent strikes became a common way for tenants to assert their voice, and were frequently used to leverage better conditions.

Fast forwarding to the late 80s and the 90s, Landlord-Tenant court is an entirely different scene. Now it's the landlord who is most often the new victim; the tables have turned 180 degrees. From judges who have to consider their political appointments as much as the actual law to such details as "helpful" memoranda and pamphlets provided for tenants at the courts, the legal system is now virtually set up to cater to the tenant. It's almost impossible for some landlords who have been justifiably wronged to get a fair hearing. Even after enduring months, sometimes years, of non-payment, landlords can expect little support from the courts in collecting back rent, or getting problematic tenants evicted.

No matter which side of the fence you're on, it's simply wrong for the system to give you short shrift because you are a "landlord," or for that matter, a "tenant." The courts have once again stratified the system, creating a new "poor" of landlords. Not all landlords are rich. We've seen working class people who happen to own a building, and are in the position of being a landlord by virtue of, say, inheriting a building, driven to despair because the system doesn't afford them justice.

Consider this analogy for months of non-payment of rent: What happens to a person who simply goes into a store, takes what he/she wants, and leaves? One wonders at the justice of a system which would encourage such a practice. What constitutes justifiable nonpayment of rent? And what is simply theft masquerading as rights?

We've set up our new legal practice to pursue to the full extent of the law the justice that the law provides, instead of enabling the status quo to persist as it has in the courts. What this translates to is not that we are "Landlord Lawyers," but rather that we are taking a stand against the persistent sense of bias inherent in the courts, which seems to have a 20- or 30-year cycle of favoring one side over the other.

In several recent cases which we represented, we feel we've begun to turn the tide in some small way. Two nuisance cases, which are not easily won these days, have had what we feel to be fair and just outcomes. In the first, the landlord made the claim that over a period of years, a tenant terrorized other tenants: screaming anti-semitic and anti-homosexual slurs at various tenants; running around the common areas and screaming at all hours; playing loud music and stomping at all hours; trying to assault the landlord; and throwing things off the roof. Through his legal aid counsel, the tenant claimed that he "behaved" during the three-month period between the service of an initial notice to terminate and the service of a second notice. In his decision, the judge upheld the landlord's contention that there had not been a "cure," although he did not rule as to whether a "cure" was or was not possible. Can a nuisance be cured? Although several cases in Manhattan have ruled in the affirmative, these were cases in which the tenant either had somewhere else to move to or had a guardian. In this ongoing case, the hard-core nuisance tenant has no intention of leaving. We considered it a victory to win even a motion, times being what they are.

A second nuisance case we recently tried yielded more significant results. It involved goings on in two piggy-backed co-op units. The owner of one unit, which was inhabited by a rent-stabilized tenant, brought a nuisance case against his tenant. Tenants in the unit downstairs claimed that there was a continuous disturbing noise, and had asked the landlord to evict his tenants. The landlord's tenants claimed not to have caused the noise. After a trial in which each side called several witnesses, the judge ruled that the tenant was causing noise. In fact, it was revealed upon cross-examination that the tenant's 18-year-old son was having sex with his girlfriend late at night, on a mattress on the floor - which accounted for the noise! The judge ordered the tenants' eviction, ruling that the son's sexual activities were a part of the nuisance. The case was appealed. The son allegedly moved out, and the Appellate Term ruled that as long as the son stayed away, the mother could remain as a tenant in the co-op.

A couple of non-payment cases we've represented have had similar positive outcomes. In one case, a landlord performed various improvements before the tenant moved in. The tenant claimed that these improvements did not merit the 1/40th increase in rent to which he was subjected. The Rent Stabilization Code permits a landlord to recoup his investment, and also encourages landlords to improve apartments, by permitting this annual rent increase. Some judges have argued that the code exists to implement the law, and since the law did not permit an increase (such as the one described above) without their approval, the increase was not permitted. We appealed this decision, not only for our client's benefit, but because it would have set a precedent for disallowing a lot of rent increases.

Disallowing rent increases leaves a landlord with virtually no incentive to improve his property. The Appellate Court decided that the DHCR's interpretation of the law is entitled to deference, and therefore the code provision in question was upheld.

The second non-payment case was significant because it brought to light an aspect of rent stabilization about which many landlords are unaware. Many landlords are not professionals; during the 80s, lots of people bought buildings when everyone was buying and developing property. Not everyone realizes that their building may not necessarily be subject to rent stabilization. The Rent Stabilization Code provides that if a building has been "substantially renovated" after June 30, 1974, that building is not subject to rent stabilization. This is another way of encouraging landlords and developers to build and renovate. The term "substantially renovated" is intentionally ambiguous, determined on a case by case basis.

In this case, a tenant claimed that the building was subject to rent stabilization. Since our pleadings said that it was not a rent stabilized building, we had to prove our case or face dismissal. After five months of trial, and some 150 exhibits later, it was held that our client's building was exempt from rent stabilization. Beyond a doubt, and opposed to the tenant's contention it was not renovated, this building had been "substantially renovated." The most general details of this renovation include:

* It had been converted from a previously uninhabitable vacant shell;

* Its Certificate of Occupancy had been legally changed from 8 units to 16 units;

* It went from 8 vacant units to 16 fully occupied units;

* Over $400,000 had been spent by the landlord.

While not all rent stabilization cases are so cut and dry as this one, we believe there are many landlords being taken advantage of in the current system. It remains that, as long as we continue to live in a city with the density and diversity of our own, there will be discrepancies in the way people see things. We'll be out there pushing for justice.