NY Housing Court: game without rules.

NY Housing Court: Game without rules

In the 1973 cult film classic, "Bang the Drum Slowly," veteran Michael Moriarity, initiates rookie, Robert De Niro, into the mysterious card game -- "TagWar: The Amazing Game Without Any Rules." With each new card played, the rules are changed to DeNiro's detriment. I am often reminded of TagWar in the housing court setting where it frequently appears as if judges and clerks are playing a game without rules -- a game devised to confuse and frustrate landlords and their attorneys.

As a landlord there is only one way to outsmart the housing court bias: utilize the few strategies and techniques the court does allow and beware of the traps which seem interwoven into the system.

Any competent tenant attorney can win in housing court by manipulating the administrative procedures and laws which already favor tenants. Often, tenants who represent themselves have an even easier time succeeding in housing court because the system generally maintains different standards for the tenant, i.e., in repeated adjournments and relaxed standards for submitting evidence.

In order for landlords' attorneys to win, however, they must have the total cooperation of their clients, even before a proceeding commences. Landlords who want to win in housing court must be thoroughly prepared to work as a team with their attorney and provide solid evidence to prove their case. There are five basic rules to follow.

Plan and document your case thoroughly: A landlord must always maintain tenant records as if litigation is imminent. As it is nearly impossible to reconstruct daily records after the fact, a master building file should be maintained for each building, creating a paper trail of all correspondence, notices, repairs, visits, etc., with each tenant. Landlords must also keep important documents together and provide an attorney with certified copies of the following in preparation for housing court: deed, current Multiple Dwelling Registration, 1984 Initial Apartment Registration and any subsequent filings with the New York State Department of Housing and Community Renewal (DHCR) which affect the rent charged.

Landlords must remain aware of unusual activity in a building; and managers and superintendents can assist in keeping records of long-term tenant absences, strange apartment occupants and mailboxes that are either always empty or always full. Checks written by individuals other than tenants should always come under suspicion as well as envelopes posted from out of town.

Don't shoot yourself in the foot: Work as a team with your attorney and make sure they have complete information before they walk into court. For example:

* Provide your attorney with the correct name and status (individual, partnership, corporation) of the person or entity who owns the property.

* Provide your attorney with the complete and correct names of all individuals who you know reside on the premises as well as all additional addresses (businesses, summer homes) for service of process.

* Make sure that the process server hired by your attorney has access to the building.

* Use "John and Jane Doe" as the fictitious names of possible additional occupants on petition so that any judgment of possession is effective against all occupants.

* Keep all registrations (multiple dwelling registration, boiler certificate of operation, etc.) current and effective.

* Sign an authorization permitting your attorney to sign notices and three-day demands so that these proceedings are not delayed.

Make full use of the tools that the law places at your disposal:

* File a demand for a Bill of Particulars with respect to the defenses and counterclaims of your tenant. The law allows you to request the tenant to detail all information regarding a claim.

* Serve Notices to Admit and to Produce with respect to issues which will arise at trial. Try to get the tenant to admit important evidence before a trial, i.e., that rent has not been paid.

* Conduct private investigations to compile solid evidence before commencing non-primary residence and/or illegal subletting cases.

* Send a Notice of Intention to Amend: Some judges require advance notice of intention to amend claim in order to include unpaid rent since the time the original claim was filed.

* Give your attorney specific, factual information to include in a Notice to Cure. Housing Court Judges are now interpreting the regulations regarding this notice much more stringently.

* Do not settle a nonpayment case by agreeing to a payout unless you are in court and are entering into a "So Ordered" stipulation, otherwise it will not be enforced.

* Include clauses in your vacancy leases that require tenant to pay specific legal fees, late charges and bounced check fees.

Be fully prepared for trial and anticipate tenant defenses:

* Promptly and properly certify the correction of any violation notices you receive before appearing in housing court.

* Start nonpayment proceedings within three months or risk a "Gramford defense" that you intentionally waited too long until the tenant could not pay the enormous outstanding balance of rent due. (Gramford Realty Corp. vs. Valentin 71 Misc 2d 784)

* Purchase a Polaroid camera and photograph every repair, before and after. Ask the tenant to sign the back of the photograph to verify its legitimacy.

* Maintain a complaint and repair log or have your superintendent maintain one which keeps track of your building's operations on a daily basis and can be used to prove your "normal course of business."

Always keep your goal in view and exercise good business judgment. Do not get emotional: If you can maintain your composure, try to communicate with your tenant directly. This applies only in a situation where you feel that a settlement is possible, otherwise leave negotiations to your attorney.

It is easy to see that the Housing Court game "without any rules" is -- in actuality, a game overrun by highly technical and trivial rules. In a practical sense, the Housing Court version of "TagWar" can be less of a mystery and more workable if you follow the common sense rules outlined above.