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How to deal with nuisance tenants.

It's summer in the city and stoops and courtyards are teeming with people who are socializing, drinking, drugging and making lots of noise. Not to mention barbecuing.

Not only do property owners have to contend with maintenance issues and rent collections, but this time of year the boisterous tenants make life difficult for the quieter ones who don't like the noise and congestion as they make their own way to and fro.

Owner Herbert Goldman has a 35-unit Brooklyn building that is typical of the problems owners face.

"It was a nice, quiet building until they became teenagers," he says of his tenants' children, who have become rowdy teenagers that have taken over the front of his building.

"The teenagers sit outside playing music, congregating in front of the building and bothering passersby. They say 'We pay rent here.' And if I chase them, by the time I go around the block, they are back."

What is so bad about teenagers hanging out? Well, that's not all they do, and Goldman has been getting complaints from the other tenants.

"They are barbecuing in front of the building and the smoke is going up to the tenants' apartments," said Goldman. The teenagers may have also broken down doors and been behind other mischief, he said.

He does not believe the teenagers are dealing drugs, but they do get deliveries, he added.

Goldman doesn't have non-payment issues, because those were cleaned up years ago through the New York State Jiggets program that makes direct rental payments to the owner for tenants on Welfare who don't pay the rent and are facing eviction.

Goldman has already made complaints to the local police precinct and signed forms to allow them to come into the building. But when he calls, they say they'll send a squad car over, and it doesn't show up.

We brought Goldman's problem to industry experts that agree he will have a tough time evicting the tenants who are not controlling their teenagers without a show of support from the other tenants.

"One tenant coming down to testify is one part of the equation, and if you compare that with everyone in the building in an uproar, and numerous police reports and an extremely strong case, that's the other," said attorney Martin J. Heistein, a partner with Belkin Burden Wenig Goldman who represents many owners with a variety of such problems.

Attorney Joel Mitofsky of Mitofsky & Shapiro recited a litany of problems owners and law-abiding tenants have faced: people swinging through glass doors, urinating off terraces, and bloody knife fights.

"Colorful testimony leads you to winning the case," he said. "But the crucial people who would have to demonstrate the problem are the ones that are fearful of the retribution back at the building."

Not only would those tenants have to make detailed written complaints, but they would have to come to court many, many times before finally being called to testify.

Some of the issues that Goldman has raised, however, could lead to speedier resolutions.

If the tenants were drug trafficking and the police make an arrest inside the building, the District Attorney's office would help with a prosecution that would then act as evidence in any eviction proceeding.

"Unfortunately, an arrest on the sidewalk doesn't cut it, it has to be inside the building," said Heistein.

Debra Petrover, a deputy district attorney with the Brooklyn District Attorney's office, says they have several programs in which they work with building owners.

Under the Narcotics Eviction Program, the District Attorneys' offices contact the building owners when they have evidence that there is narcotics trafficking in the building. The program revolves around the use of old civil bawdy house laws in which an "illegal trade or business" is being conducted, so does not include personal use by the tenants.

The owner would contact their own attorney, and the District Attorney's office will arrange for police testimony and the documentation that is required for an eviction action, which is brought in a special part of the Landlord/Tenant court.

"We rely on police testimony to establish that the items seized pursuant to a search warrant were in fact contraband and are controlled substances or marijuana. We also rely on police testimony out of consideration for the safety of the neighbors, who then are not usually called upon to testify," said Petrover. "We have evicted hundreds of people, but we can only evict someone who has a right to be in the building. So this only applies to tenants who use the premises for drug dealing or when the tenant of record allows others to do so."

There would have to be evidence in the form of arrests and seizures in the buildings for possession of the drugs. One of the hurdles that has to be met, Petrover explained, is if the tenant knew or should have known about the dealing in the apartment.

"It's a difficult thing for the court and the prosecutor because we are expected to prove that the mother or grandmother knew what was going on," she said. That means if the police make the arrest there have to be scales and drugs and money in plain view, and the tenant is not willfully blind.

"But sometimes the tenant is 82 years-old and she doesn't know what is going on, and it would be extraordinarily harsh for her to be evicted, so that the landlord and tenant enter into a stipulation that the offending party can't be in the building," said Petrover. "Eviction is a harsh remedy, but on the other hand, if you don't get rid of drug dealers, the community suffers. Clearly, one of the things a landlord can do is make complaints to the police."

The other program available to owners is the F-Tap Program, in which the owners, in cooperation with the police in their local precincts, provide a list of tenants that is updated monthly. The owners also sign an affidavit stating that these are the people who have the right to be in the building.

"The police will conduct a vertical patrol and if they see people who have no legitimate reason to be in the hallways, they will arrest them for trespass," said Petrover.

There is also a community strike force program that works together with community groups and the police to target difficult drug trafficking problems in the community.

"Citizens don't often want to put themselves at risk," added Petrover. "All of these are different weapons, but not all will solve every problem."

The State also operates a free community dispute resolution center program in each borough that is "loosely" connected to both the Courts and the community. In Brooklyn, that program is operated at several sites through Victim Services and is known as the Mediation and Conflict Resolution Center. A spokesperson at the main office in Manhattan said an owner can call and request intervention.

"It's a voluntary process, but the letter we send to the respondents in a sense lets them know it's to their benefit to attend or it could lead to a court action," explained an official. "The parties come to a mediation session run by an impartial third party."

However, that individual is not empowered to make a decision. The parties are not forced to resolve anything, and they can even leave the session whenever they want.

What the program does do is facilitate a process for finding common ground, and the mediator can also make referrals or suggest other agencies that can help. The parties can meet more than once, and there is no charge for the process.

The mediator can meet with the parties separately, and in the case of teenagers, can meet with them in conjunction with their parents.

Another issue that Goldman, the owner, can use to his advantage is the fact that the tenants are barbecuing outside the building. Tom Butler, a spokesperson for the Uniformed Firefighters Association, says any open flame on a public sidewalk must be 10 feet from all combustible objects, whether a car, a building, or a tree.

And if a person has an open flame on a public sidewalk or public location, they must have a hose or a fire extinguisher to be able to extinguish the fire, Butler added.

The owner has no legal standing, but he can ask them to put it out. If the fire is within 10 feet of a combustible object, the owner can register a complaint with either the police or the Fire Department, and a "legal authority" would have to come and tell the tenants to put it out.

"If they continue to do it, or put it out and half an hour later they do it again, then a violation is issued to the person who is flagrantly disregarding public safety by maintaining an open flame," said Butler. "When that person goes to the hearing, it would be noted they had been asked to put it out and did not comply."

Such a violation could also be used as part of the evidence that an owner can collect to show a pattern of conduct.

"The owner needs to keep a log or a diary detailing all of the incidents," says attorney Heistein. These include all oral and written communications with the tenants, dates and times the police were called, and copies of the police reports.

Mitofsky says sometimes owners are left "between a rock and a hard place. You have to start a proceeding to show the other tenants you are doing something. That way, you can at least tell the other tenants you did everything you could."

The owner can show the other tenants they are prepared to take the case to a Housing Court, but it is a court, and a court that requires the allegations be proven, explained Mitofsky. "You have to tell the other tenants it's a serious thing, and the court won't just evict them."

If the other tenants aren't willing to testify, sometimes the attorney can issue subpoenas to get them into court.

Before going to court, the owner will have to send a written notice to the tenants creating the nuisance, describing the problems and giving them 10 days from receipt - add five days for the mailing - to stop the behaviors or "cure" the problem.

The notice should state what is complained about, and that this is what the tenant must prevent from recurring, and under the Rent Stabilization code and under most leases, that notice says the tenant has 10 days to stop the behavior.

"In this type of situation you are saying if it happens after 10 days of the receipt of this notice plus five days for mailing, then the owner will terminate your tenancy," said Mitofsky.

But where there is known drug activity, extensive partying, fires, or other more terrible actions, Mitofsky says he dispenses with the notice to cure and the Rent Stabilization code allows the matter to go directly to a seven day notice of termination.

"In effect, you have committed such nuisance behavior it can't be cured, and your tenancy is being terminated," he explained. At that point, the owner is in a position to serve a holdover petition and put the matter on the calendar of the court.

Mitofsky explains that if the owner brings the matter to Housing Court seeking the eviction of the problem tenants, the burden of proof initially is on the owner to prove it is serious enough to rise to the level where a Housing Court judge will evict.

The first effort in any case is to see if there are grounds by which the case can be settled. If there is a severe nuisance, Mitofsky says he's had to make it clear the only settlement will be to have the tenants evicted, and that he is prepared to go to trial and have the court evict.

Often, the court suggests giving the tenants another chance and if the owner is willing, puts the tenants into a probationary period through a stipulation.

"The tenants and owner may enter into a stipulation that says the tenants will behave," he said, noting there are strong stipulations, lukewarm ones, "and also those that aren't worth the paper they are printed on. The attorneys who represent the tenants will say they are being picked on, and that the tenants are not really bad, they are just playing music."

Mitofsky says a good stipulation or outcome from the Housing Court should result in a final order that says, "if it happens again, they can be evicted."

Once the owner serves a notice to cure, rent checks should be returned to the tenant.

"My practice is that if a rent payment comes in and you are dealing with a direct payment from the Department of Social Services (DSS), you keep the rent money," said Mitofsky. Indeed, Goldman says he had asked DSS not to send him the rent for these tenants, but they have persisted.

If it is the tenant's own check, Mitofsky gets the check from his client and mails it back with a letter that says while this default exists, this payment will not be accepted. But the letter also makes it clear the return of the check does not alleviate or relieve the tenant of their legal obligation to pay the rent.

"Don't get into a waiver situation so that the tenants think the problem is cured," he advised.

He also would advise the tenant that the fact that a payment is being made by direct vendor payment through the DSS does not indicate or acknowledge that they have cured the problem.

Once the holdover petition is placed on the court calendar, Mitofsky says the owner can once again accept rent payments.

The timing, however, is critical because tenants need a specific number of days to be served with the holdover notice, and can't have more or less without it being voided.

"Unfortunately, the bottom line of living in New York involves living in close quarters," said Heistein. For the courts, he says, it becomes "where does the nuisance cross the line?"

Dan Margulies, executive director of the Community Housing Improvement Program (CHIP), noted that these kinds of incidents are part of the reason this group of owners would like to see the end of rent regulations."

"In the free world you would just refuse to renew the tenant's lease," Margulies said. "In New York, you have to deal with these situations in a totally unreasonable way."
COPYRIGHT 1997 Hagedorn Publication
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1997, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

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Author:Weiss, Lois
Publication:Real Estate Weekly
Date:Jul 30, 1997
Words:2425
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