Landlord & Tenant

Court of Appeals

(memorandum opinion)

In tenant's action against building owner for injuries suffered in an attack by an intruder, tenant appealed from the Appellate Division's reversal of Supreme Court's denial of owner's motion to dismiss. The Court of Appeals affirmed, holding that the owner had discharged its duty to take minimal security precautions.

James was accosted in the vestibule of a housing complex building, but could not get inside locked glass doors, for which he did not have a key. James' father brought this action on his behalf, alleging that the building owner had negligently failed to provide adequate security. Supreme Court denied owner's motion to dismiss, but a divided Appellate Division reversed, and tenant appealed.

In affirming, the Court of Appeals emphasized that the owner provided locking doors, an intercom service, and 24-hour security.

Building-wide Rehab Does Not Affect Rent Status

In re 12th Co LLC v. New York State Division of Housing and Community Renewal

NYLJ 3/31/04, p. 20, col. 2

AppDiv, First Dept

(memorandum opinion)

In landlord's article-78 proceeding to annul DHCR's determination that tenant was entitled to a rent-stabilized lease, landlord appealed from Supreme Court's dismissal of the proceeding. The Appellate Division affirmed, holding that building-wide rehabilitation did not affect tenant's right to a rent-stabilized lease if no improvements had been made to his apartment.

Section 5(a)(5) of the Emergency Tenant Protection Act (ETPA) exempts from rent stabilization “housing accommodations in buildings completed or buildings substantially rehabilitated as family units” after 1974. Landlord contends that it has substantially rehabilitated the building, although tenant was in full occupancy of his apartment during the rehabilitation, and his apartment was not substantially affected by the rehabilitation. DHCR interpreted the ETPA exemption to exclude occupied rent regulated units that have not been rehabilitated, even if the building has been substantially rehabilitated. Landlord challenged DHCR's determination, contending that the statute does not contain exceptions from the exemption. Supreme Court dismissed landlord's petition.

In affirming, the Appellate Division concluded that ETPA 5(a)(5) provides for the existence of an exemption, but does not define the exemption's scope. The court concluded that DHCR's determination was consistent with the legislature's objective, which was to encourage creation and rehabilitation of housing. Because the tenant has not benefited from any improvement to his apartment, because landlord may have other means to recover expenses from the tenant, and because no costs were attributable to tenant's apartment, the court concluded that landlord should not be entitled to exempt tenant's apartment from rent stabilization.

Roommate Law Does Not Affect Rent-Controlled Tenants

41 West 72 LLC v. Bondy

NYLJ 3/12/03, p. 20, col. 1

Civ Ct., N.Y. Cty

(McClanahan, J.)

In landlord's proceeding to recover possession of a rent-controlled apartment, tenant moved for summary judgment dismissing the proceeding. The court denied tenant's motion, holding that although a rent-controlled tenant may not be evicted for charging a roommate more than a proportional share of rent, a rent-controlled tenant may be evicted for charging rent in excess of the maximum rent permitted for the apartment.

Tenant, who lived in the rent-controlled apartment for 40 years, had charged various roommates $1000 per month since 1998. During that period, the maximum legal rent for the apartment has increased from $793.05 to $857.37. Landlord brought this proceeding to recover possession because tenant had charged the roommates more than their proportionate share of the rent. Section 2525.7(b) of the Rent Stabilization Code prohibits tenants from charging more than a proportionate share of the legal rent, but the Rent Control Law does not include a similar prohibition. The Rent Control Law does make it unlawful for a tenant to “demand or receive any rent … in excess of the maximum rent” (Rent and Eviction Regulations sec. 2205.1).

In light of the applicable statutes and regulations, the court concluded that a rent-controlled tenant could not be evicted for charging more than a proportionate share of the rent. The court emphasized that when DHCR amended the Rent Stabilization Code to prohibit charges of disproportionate rent, it could have amended the Rent and Eviction Regulations applicable to rent-controlled tenants, but did not do so. As a result, the court held that it could not extend the rent stabilization prohibition to rent-controlled tenants. The court did hold, however, that landlord might be entitled to possession if tenant had charged more than the maximum rent permissible for the apartment. Whether landlord was entitled to possession would turn on unresolved issues of fact about whether the amounts tenant charged roommates included a share of tenant's outlays for expenses such as utilities, linens, paper towels, and toilet paper. Hence, the court restored the proceeding to the calendar.

COMMENT

The Rent Stabilization Law, the Rent Control Law, and the Loft Law all prohibit collection by tenants of rent over the applicable maximum. See 9 NYCRR 2205.1 [rent control]; 9 NYCRR 2525.6(b) [rent stabilization]; Loft Board Regulations sec. 2-09. Only the Rent Stabilization regulations, however, expressly provide that a landlord may recover possession from a tenant who charges a subtenant in excess of the statutorily permitted rent. 9 NYCRR 2525.6(f). In several cases, however, New York courts have extended the remedy of repossession to landlords of rent controlled units and loft units, invoking the doctrine of “in pare materia”. Thus, in BLF Realty Holding Corp. v. Kasher, 299 AD2d 87, the court awarded possession to a loft landlord when tenant collected from a subtenant amounts greater than the total regulated rent for the unit. Similarly, in Hurst v. Miske, 133 Misc2d 362, the court awarded possession to landlord of a rent-controlled apartment when the tenant charged a subtenant more than twice the regulated rent.

In 41 West 72nd Street, landlord sought to invoke the “in pare materia” principle to extend to a rent-controlled tenant the Rent Stabilization Law's prohibition on charging roommates more than a proportionate share of the apartment's rent. 9 NYCRR 2525.7(enacted 12/20/2000). The court, however, distinguished BLF and Hurst, noting that the rent control law the loft law both prohibit charging a subtenant more than the rent authorized by statute, while neither prohibit charging a roommate more than the roommate's proportionate share. While the “in pare materia” principle would be applicable to extend the rent stabilization remedy to conduct already prohibited by the rent control or loft laws, the principle did not justify extending the rent stabilization remedy — eviction — to conduct not prohibited by rent control or loft laws.

Landlord Not Estopped from Enforcing Written Consent Requirement

767 Third Avenue LLC v. Kadem Capital Management, Inc.,

NYLJ 3/13/03, p. 18, col. 6

AppDiv, First Dept

(memorandum opinion)

In landlord's proceeding for possession of premises subleased without landlord's written consent, tenant and subtenant appealed from the Appellate Term's affirmance of Civil Court's grant of summary judgment to landlord. The Appellate Division affirmed, holding that landlord was not estopped from asserting the lease provision requiring written consent.

Tenant and subtenant each leased space on the 38^th floor of landlord's building. When tenant wanted to acquire subtenant's space, the two agreed that in return for that space, tenant would lease space from landlord on the 31^st floor, and would sublet that space to subtenant. Landlord leased the 31^st floor space to tenant, approved renovation of that space, and facilitated subtenant's move into that space. No sublease of the 31^st floor space was ever presented to landlord, who then brought this proceeding for possession, relying on a lease provision requiring the landlord's written consent to any sublease. Subtenant contended that landlord had waived, or was estopped from asserting, the written consent provision in the lease.

In holding that landlord has properly been awarded possession, the Appellate Division noted first that subtenant did not have the contractual privity necessary to assert the waiver or estoppel claims. In addition, the court relied on the nonwaiver clause in the lease. The court also noted that subtenant should have been aware that landlord's facilitation of its move were not inconsistent with landlord's right to review a sublet request when presented with a sublease.

Tenant Attacked; Building Owner Held Not Responsible

James v. Jamie Towers Housing Co., Inc.

NYLJ 4/4/03, p. 19, col. 1

Court of Appeals

(memorandum opinion)

In tenant's action against building owner for injuries suffered in an attack by an intruder, tenant appealed from the Appellate Division's reversal of Supreme Court's denial of owner's motion to dismiss. The Court of Appeals affirmed, holding that the owner had discharged its duty to take minimal security precautions.

James was accosted in the vestibule of a housing complex building, but could not get inside locked glass doors, for which he did not have a key. James' father brought this action on his behalf, alleging that the building owner had negligently failed to provide adequate security. Supreme Court denied owner's motion to dismiss, but a divided Appellate Division reversed, and tenant appealed.

In affirming, the Court of Appeals emphasized that the owner provided locking doors, an intercom service, and 24-hour security.

Building-wide Rehab Does Not Affect Rent Status

In re 12th Co LLC v. New York State Division of Housing and Community Renewal

NYLJ 3/31/04, p. 20, col. 2

AppDiv, First Dept

(memorandum opinion)

In landlord's article-78 proceeding to annul DHCR's determination that tenant was entitled to a rent-stabilized lease, landlord appealed from Supreme Court's dismissal of the proceeding. The Appellate Division affirmed, holding that building-wide rehabilitation did not affect tenant's right to a rent-stabilized lease if no improvements had been made to his apartment.

Section 5(a)(5) of the Emergency Tenant Protection Act (ETPA) exempts from rent stabilization “housing accommodations in buildings completed or buildings substantially rehabilitated as family units” after 1974. Landlord contends that it has substantially rehabilitated the building, although tenant was in full occupancy of his apartment during the rehabilitation, and his apartment was not substantially affected by the rehabilitation. DHCR interpreted the ETPA exemption to exclude occupied rent regulated units that have not been rehabilitated, even if the building has been substantially rehabilitated. Landlord challenged DHCR's determination, contending that the statute does not contain exceptions from the exemption. Supreme Court dismissed landlord's petition.

In affirming, the Appellate Division concluded that ETPA 5(a)(5) provides for the existence of an exemption, but does not define the exemption's scope. The court concluded that DHCR's determination was consistent with the legislature's objective, which was to encourage creation and rehabilitation of housing. Because the tenant has not benefited from any improvement to his apartment, because landlord may have other means to recover expenses from the tenant, and because no costs were attributable to tenant's apartment, the court concluded that landlord should not be entitled to exempt tenant's apartment from rent stabilization.

Roommate Law Does Not Affect Rent-Controlled Tenants

41 West 72 LLC v. Bondy

NYLJ 3/12/03, p. 20, col. 1

Civ Ct., N.Y. Cty

(McClanahan, J.)

In landlord's proceeding to recover possession of a rent-controlled apartment, tenant moved for summary judgment dismissing the proceeding. The court denied tenant's motion, holding that although a rent-controlled tenant may not be evicted for charging a roommate more than a proportional share of rent, a rent-controlled tenant may be evicted for charging rent in excess of the maximum rent permitted for the apartment.

Tenant, who lived in the rent-controlled apartment for 40 years, had charged various roommates $1000 per month since 1998. During that period, the maximum legal rent for the apartment has increased from $793.05 to $857.37. Landlord brought this proceeding to recover possession because tenant had charged the roommates more than their proportionate share of the rent. Section 2525.7(b) of the Rent Stabilization Code prohibits tenants from charging more than a proportionate share of the legal rent, but the Rent Control Law does not include a similar prohibition. The Rent Control Law does make it unlawful for a tenant to “demand or receive any rent … in excess of the maximum rent” (Rent and Eviction Regulations sec. 2205.1).

In light of the applicable statutes and regulations, the court concluded that a rent-controlled tenant could not be evicted for charging more than a proportionate share of the rent. The court emphasized that when DHCR amended the Rent Stabilization Code to prohibit charges of disproportionate rent, it could have amended the Rent and Eviction Regulations applicable to rent-controlled tenants, but did not do so. As a result, the court held that it could not extend the rent stabilization prohibition to rent-controlled tenants. The court did hold, however, that landlord might be entitled to possession if tenant had charged more than the maximum rent permissible for the apartment. Whether landlord was entitled to possession would turn on unresolved issues of fact about whether the amounts tenant charged roommates included a share of tenant's outlays for expenses such as utilities, linens, paper towels, and toilet paper. Hence, the court restored the proceeding to the calendar.

COMMENT

The Rent Stabilization Law, the Rent Control Law, and the Loft Law all prohibit collection by tenants of rent over the applicable maximum. See 9 NYCRR 2205.1 [rent control]; 9 NYCRR 2525.6(b) [rent stabilization]; Loft Board Regulations sec. 2-09. Only the Rent Stabilization regulations, however, expressly provide that a landlord may recover possession from a tenant who charges a subtenant in excess of the statutorily permitted rent. 9 NYCRR 2525.6(f). In several cases, however, New York courts have extended the remedy of repossession to landlords of rent controlled units and loft units, invoking the doctrine of “in pare materia”. Thus, in BLF Realty Holding Corp. v. Kasher, 299 AD2d 87, the court awarded possession to a loft landlord when tenant collected from a subtenant amounts greater than the total regulated rent for the unit. Similarly, in Hurst v. Miske, 133 Misc2d 362, the court awarded possession to landlord of a rent-controlled apartment when the tenant charged a subtenant more than twice the regulated rent.

In 41 West 72nd Street, landlord sought to invoke the “in pare materia” principle to extend to a rent-controlled tenant the Rent Stabilization Law's prohibition on charging roommates more than a proportionate share of the apartment's rent. 9 NYCRR 2525.7(enacted 12/20/2000). The court, however, distinguished BLF and Hurst, noting that the rent control law the loft law both prohibit charging a subtenant more than the rent authorized by statute, while neither prohibit charging a roommate more than the roommate's proportionate share. While the “in pare materia” principle would be applicable to extend the rent stabilization remedy to conduct already prohibited by the rent control or loft laws, the principle did not justify extending the rent stabilization remedy — eviction — to conduct not prohibited by rent control or loft laws.

Landlord Not Estopped from Enforcing Written Consent Requirement

767 Third Avenue LLC v. Kadem Capital Management, Inc.,

NYLJ 3/13/03, p. 18, col. 6

AppDiv, First Dept

(memorandum opinion)

In landlord's proceeding for possession of premises subleased without landlord's written consent, tenant and subtenant appealed from the Appellate Term's affirmance of Civil Court's grant of summary judgment to landlord. The Appellate Division affirmed, holding that landlord was not estopped from asserting the lease provision requiring written consent.

Tenant and subtenant each leased space on the 38^th floor of landlord's building. When tenant wanted to acquire subtenant's space, the two agreed that in return for that space, tenant would lease space from landlord on the 31^st floor, and would sublet that space to subtenant. Landlord leased the 31^st floor space to tenant, approved renovation of that space, and facilitated subtenant's move into that space. No sublease of the 31^st floor space was ever presented to landlord, who then brought this proceeding for possession, relying on a lease provision requiring the landlord's written consent to any sublease. Subtenant contended that landlord had waived, or was estopped from asserting, the written consent provision in the lease.

In holding that landlord has properly been awarded possession, the Appellate Division noted first that subtenant did not have the contractual privity necessary to assert the waiver or estoppel claims. In addition, the court relied on the nonwaiver clause in the lease. The court also noted that subtenant should have been aware that landlord's facilitation of its move were not inconsistent with landlord's right to review a sublet request when presented with a sublease.