Office Hours with Sam Himmelstein

Emily Myers: Welcome to the Brick Underground podcast—I’m Emily Myers. One of the most rewarding parts of my job as a writer at Brick Underground is hearing from readers or listeners that they've used our content to figure out the answer to a complicated New York City real estate question. Renting here usually comes with some kind of headache - a broken elevator, a rent increase,  leaks, mold, the list goes on. Well, I recently sat down with tenant attorney Sam Himmelstein, a partner at Himmelstein, McConnell, Gribben & Joseph and a long time sponsor of our site for our first live Brick Underground Office Hours, an open forum for questions and answers: we discussed fees for late rent payments, pet and smoking policies, how to negotiate at renewal time,  what to do about a surly super,  how to take over a rent-stabilized apartment, and much, much more. It was such a great experience and we wanted to share it with you as a podcast. So here it is. I hope you enjoy it.

Emily Myers: Hi and thank you for joining us. I'm Emily Myers, a writer at Brick Underground. I've been covering real estate in New York City for close to five years. I'm very excited to be hosting our first brick underground Q and A to give you the opportunity to get answers to all your New York City tenant's rights questions.

A word of housekeeping and just a reminder that of course we are switching off video and we will have you on mute, but please do put your questions in the chat. Well, of course, renting in New York City requires a big financial commitment and then comes some of the frustrating issues you face as a tenant, whether that's a broken elevator or a substantial rent increase when you go to renew.

Brick's goal is to make life easier for you, empowering you with knowledge about your rights as a tenant and helping you meet your housing goals. So to answer your questions, I'm thrilled to introduce tenant attorney Sam Himmelstein, a partner at Himmelstein McConnell Gribbin, and Joseph who represents residential and commercial tenants and tenant Associations.

Sam Himmelstein: Hi. How are you? Good to be here. 

Emily Myers: Great. It's great to have you here. And I am just going to, Make sure that your details are in the chat as well. So Of course, Sam, you are also Brick Underground's Ask a Renter's Rights Lawyer columnist, and a longtime Brick sponsor. I think it would take me a very long time to list all your achievements, but let's just say they are many.

We have set aside 30 minutes for this q and a, although it may run over that time. But, I want to make sure we get to as many questions as possible. We did poll people ahead of time and we do have some questions to get going, so perhaps I can start, we can jump straight in with the first one which is about water temperature.

A reader says, the water in my kitchen [00:02:00] sink is only lukewarm, never hot. I've complained several times over the last six months and nothing has happened. Can I ask for a rent abatement also, if I complain again, can they raise my rent even more in retaliation when I re-sign my lease and they add I'm in a luxury building.

Sam, what's your advice here? 

Sam Himmelstein: Well, let's start with this. First of all, the person asking the question is probably not a rent stabilized tenant, and a lot of the answers I'm gonna be giving today are going to distinguish between the rights of a stabilized and non stabilized tenant. Everybody in New York City, in New York State has the right to a habitable apartment.

There is something called the warranty of habitability that covers every single apartment. It essentially says that apartments have to be free of conditions, dangerous to life, health, and safety, but that is very, [00:03:00] very broadly construed. So not having hot water. Would be considered a breach of the warranty of habitability.

There is also a minimum temperature required for hot water. Unfortunately, I don't know it off the top of my head, but it is in the New York City Housing and Maintenance Code. So if you're not getting hot water, yes, you should be entitled to a rent abatement. How much? Very hard to tell. 15%, 20%, somewhere in that range because you know, it affects your ability to shower and shave and do all those other things.

But if you complain, while New York State has these wonderful laws that prohibit retaliation and that prohibit. A landlord from not renewing a lease or evicting a tenant in retaliation for their complaining [00:04:00] or even raising the rent unconscionably in retaliation. I have found that enforcing a retaliatory eviction case is very, very difficult in court.

It's very, very hard to prove, even though the law creates a presumption that if within six months of a complaint, the landlord acts in a retaliatory manner, it's still very hard to prove what you get out of it. In other words, let's say the landlord refuses to renew the lease or raises the rent to some amount you don't wanna pay and you end up in court.

Mm-hmm. And you defend the case based on retaliatory eviction. If you win, all you get is a one year lease. And at the end of that one year lease, the landlord's retaliatory motive is deemed to have been purged, is the word. So why? Why [00:05:00] fight? Why pay a lawyer? Why spend thousands of dollars? Why spend hours in court fighting for something that's only gonna get you another year in the apartment?

One other, I guess, piece of advice here. This is the kind of issue that it helps -. It's better to respond with numbers. So if this is affecting other tenants in the building as it, a problem with hot water, typically would get a few of your neighbors together and deal with it collectively, it makes you much harder to be picked off that way.

Emily Myers: Okay. So that's actually really good advice for other issues or in the, in the building mm-hmm. To kind of get, get moral or support from your neighbors. 

Sam Himmelstein: Yeah. Now if this person were stabilized, then they wouldn't have to worry about retaliation in, in the sense of they would still have to have their lease renewed.

They couldn't have their rent increased beyond what rent stabilization allows. [00:06:00] And so this is a perfect example of how. A stabilized tenant can be much more confident in enforcing their rights than a non stabilized tenant because in a 

Emily Myers: Because in a rent-stabilized situation, your renewal is guaranteed. 

Sam Himmelstein: Yeah, that's correct.

And you can yes, you, you at, at a very modest increase, whatever the current guidelines are. So so it's much safer if you're a stabilized tenant to complain about conditions. 

Emily Myers: Okay. Well, actually we do have a question about someone in a rent stabilized apartment reaching out with a question. This is about late rent payments.

This tenant mails their check to the landlord and says The original lease doesn't have a clause about late payments. They notice they are being charged a late fee and they, they've also seen late charges applied for backdated rent payments totaling thousands of dollars, and they ask, are we responsible for the late fees if we were never told about what constitutes a late [00:07:00] payment?

And it's not in the lease. I know that late payments were addressed in the rent reforms in 2019. 

Sam Himmelstein: What? Right. So this, this, this one's easy. One of the fundamental tenets of, of rent stabilization is that renewal leases must be on the same terms and conditions as the original lease. And if you have a copy of your original lease, Or this particular person, it sounds like they do.

And there is not a late fee clause. It cannot be imposed subsequently. And so all those late fees are illegal. And the tenant does not have to pay them. And if the landlord tried to enforce them, they'd be thrown out of court. What the rent reform laws did was simply they didn't outlaw. Late fees, which would otherwise be permissible.

But what they said is they can't be collected as if they were [00:08:00] rent. Meaning if you don't, if you don't pay your rent, you could potentially be evicted. But if, even if you're a stabilized tenant, but if you don't pay late fees, that cannot be the basis for your eviction. But in this case, since this person appears to have their original lease and it does not have a late fee clause, they're completely within their rights and not paying those fees, and the landlord can't impose them.

Emily Myers: Okay.  I think we've got a question. Does the same apply for market rate tenants? 

Sam Himmelstein: No. Market rate leases? Well, what does apply is what I said about they can't be, it can't be used to evict you. It's still that that applies to all tendencies. Yeah. But late fees are permissible in market rate leases.

And if you are, if you have an original lease that doesn't have a late fee clause, but the landlord puts it in a renewal lease, and [00:09:00] if you agree to it, it is enforceable, right? It, it, it can't be unconscionable, it can't be exorbitant, you know, it can't be. You know, a a a $500 late fee on a, on a $3,000 rent, it has to be reasonably related to the harm that the landlord is suffering as a result of the rent being paid late.

Because late fees are what we call a liquidated damages clause. In other words the landlord is saying, I've somehow been harmed by your paying this late. It's hard exactly to quantify, but, but they can't. You know, a late fee of $25 - $50 is probably okay. I 

Emily Myers: I thought late fees were actually capped at $50.

Sam Himmelstein: I don't think so. But I can look into that, but I don't, I I don't think so. Maybe you, maybe you're right. You mean that, you mean the new law captain at 

Emily Myers: $50? I, believe the 2019 law changed. 

Sam Himmelstein: I've never, I've never confronted [00:10:00] that issue, so I don't know the answer, but it could be, yeah.

Emily Myers:  We'll have a look into that.

Yeah. Actually we have this scenario presented to us by a brick reader. And this is again, a rent-stabilized apartment. A 35 year old has been living with their mother in a rent-stabilized apartment, and is an occupant on the lease can they take on the lease if their mother moves out? It looks like the landlord is advising them to stay as an occupant right now.

Not a signatory on the lease. So what are the issues that you should be thinking about in terms of taking on a rent stabilized lease? 

Sam Himmelstein: Okay, so rent, there's a concept under rent stabilization, which is called succession. If a family member co-occupies an apartment with a rent-stabilized tenant for two years prior to the date that that tenant permanently vacates the apartment, permanent vacating [00:11:00] means you either the tenant has died.

Or they have moved into a nursing home and they're never coming back, or they simply move out, they go to Florida or they move to another apartment. If a family member has been cohabiting the apartment for that two year period, and the apartment was the primary residence of both the tenant and the family member that.

Family members can take over the tendency under what is called succession. That two year period is shortened to one year if the successor is 62 or over or is disabled. And the definition of family, it's basically children, parents, grandchildren, grandparents, brothers, sisters, husbands, wives. Aunts and uncles and nieces and nephews were eliminated in 1997.

But there's also a category which of, of [00:12:00] family members, which is if you have an emotionally and financially interdependent relationship with the tenant even if you're not related by blood or marriage, you can also succeed to the tenancy. People often ask me, well, I'm, I'm the child or the grandchild.

Why can't I just be added to the lease? Why do I have to go through this whole succession issue? And the reason is that landlords are not required to add any family members to an existing lease other than a spouse. So if, if you get married, you have a right to be added to the lease, and I recommend that people do that because then they don't have to go through the succession request if and when one of the spouses leaves.

But in terms of this particular situation with the child the, if the landlord doesn't want to add them as a tenant to the lease there's no way to [00:13:00] force it. 

Emily Myers: But it sounds like from what you're saying, the succession rules would apply. 

Sam Himmelstein: Yes. Based on what's described there, that both the tenant and the family member are living together.

The problem is when you have a situation like this, I hate to be morbid about this, but you never know when the tenant is gonna die. And if, if, let's say you're an adult child you know, you have to, the only two years that count are the two years immediately proceeding the date that the tenant vacates.

So you basically have two scenarios. One where the vacating is planned. Because the tenant knows, okay, I'm planning to, I bought a condo in Florida. I'm, and I'm moving. But the other is when it's health related. And you know, I've had many, many cases over the years where family members moved in, but the tenant died before the, we, they reached the two years of co occupancy, in [00:14:00] some cases, only a month short.

And the tenants couldn't prevail. There's the, unfortunately, the two years is a very strict cutoff. 

Emily Myers: Wow. And I think I'm right in saying this is consistent with Mitchell Lama buildings as well. 

Sam Himmelstein: Yes, correct. And there's one other exception I should mention to the two-year rule, which is if the, there's co-occupancy from the inception of the relationship or the inception of the tenancy, then the two years doesn't apply.

So in other words, if, if a husband and wife move in, get married, And the husband say, moves into the apartment and the wife dies a year later, he would still have succession rights because he lived there from the inception of the relationship.

Emily Myers: Right.  Okay. Well it looks like we have a question in the chat about flooring in a rent-controlled apartment.

Ellen says that [00:15:00] the previous tenant put down carpeting and it's slowly being worn away. The wood floors under the carpeting have never been treated. So raw wood under this on the floor. Can I get the landlord to do anything with the floor? Since the carpeting's coming off and splinters are.?

Sam Himmelstein: I mean, it sounds to me like the carpeting is defective and, you know, carpeting cannot, carpeting that's wearing like that could not only be, is not only unsightly and, and a cosmetic problem, it could potentially be dangerous. Carpeting is considered cosmetic. The tenant has every right to take up the carpeting unless the lease requires the apartment to be carpeted.

Some leases have clauses in them that say that 80% of the, of the apartment have has to be carpeted. And that probably is an enforceable clause. If there is no such clause in the lease, the tenant has a right to take up the carpeting. [00:16:00] And then I think it would depend on whether the damage to the floors, again, is cosmetic or is actually something that is needs repair.

So for example, If it's just stained you know, that might be the tenant's responsibility. But if there's splintering, if there's floorboards that are coming up, if there's nails that are coming up, things like that. It's definitely the landlord's responsibility under the warranty of habitability, I. 

Emily Myers: Yeah, exactly. Providing a safe and habitable place. Okay, I hope that's answered the question. We did get another question before the q and a. This again this is about cleaning. This: Are landlords required to clean either mop or sweep apartment building hallways on a regular basis. So this is the common areas, and for some context, the tenant says, I live in a brownstone with 13 apartments, and the management company just changed.

The previous company used to mop [00:17:00] every week, and now it's happening once a month, which doesn't seem adequate for high tr for high traffic building. Sam what are a landlord's obligations when it comes to the common areas of a building?

Sam Himmelstein: They have to be kept clean and sanitary. And again, let's distinguish between stabilization and not.

Rent stabilization has a concept called required services. Essentially, it means that any service that you're being provided when you move into a rent stabilized apartment must be continued. It could be a doorman, it could be a laundry room, it could be a storage area, or it could be the frequency of of which the common areas are cleaned, and if the.

It used to be once a week and this tenant is stabilized, and now it's once, once a month. Coupled with the fact that the floors are dirtier, the tenant can file a reduction of services complaint at the D H C R Division of Housing and Community [00:18:00] Renewal, and they will send out an inspector and if they find that there is a reduction of services.

They will roll the tenants rent back to what it was being paid in the prior lease, and it will be frozen there until the problem is rectified. And that's the kind of thing, if there are stabilized tenants in the building, it's much better to band together and get a building wide reduction of services because it'll have a greater economic impact on the landlord.

It means, it means they can't even raise the rent if a tenant moves out, that, you know, there's no increases at all. So that's what we recommend in a non-res stabilized situation. It really comes down to whether the lack of cleaning creates unsanitary conditions. If it does, then it's a borderline warranty of habitability issue.

But [00:19:00] again, you know, everything I said before about retaliation and renewal leases would apply. You gotta be careful about the battles that you pick as a non-regulated tenant because landlords might retaliate by saying, you know, this person's not worth is too much of a pain and that, you know what, and I don't want them there anymore.

And so everything I then said about retaliation applies.

Emily Myers: And is there any sort of practical advice then about that? I mean, do you, do you just advise Yeah. Picking your battles? Is that the right?

Sam Himmelstein: Yeah. Yeah. You gotta pick - to me having the floors clean is important, but it does it to me, it's not the most important.

It wouldn't be the most important issue for me. You know, I, I understand. You know, I, I, I'm not there. I don't know how dirty the floors are, you know? So you know, I don't know. I just don't know whether that would be the battle I would pick if I were a market rate tenant. 

Emily Myers: Sure. And would it be sensible to document the condition?

Sam Himmelstein: [00:20:00] Always. Always. Whenever we're gonna be talking about conditions, it's important that communications be put in writing that you're not rely on, you know, calling the landlord and, and verbally complaining. Emails are fine. It doesn't have to be a formal certified letter. And photographing is important so that you have proof of the condition.

Emily Myers: Okay. Another question we got ahead of time was, was about the super. The super in our building is unpleasant towards tenants and many of us have complained, but nothing is done about it. Right? What can we do? And I think there is a question. Does or does Ellen have a follow up about the super in her building?

You know, complaints about supers. How can that be dealt with?

Sam Himmelstein: It, you know, you can't, you can't legislate courtesy unfortunately. So if the super is simply being courteous [00:21:00] and. It doesn't say thank you and doesn't smile and grunt when he, you speak to him. I don't think there's much you can do about it.

However, there's, there's sort of a fine line between courteousness and it rising to the level of harassment. Right. New York's among the things that the changes in the 2019 laws did was they greatly strengthened the anti-harassment provisions in New York. Now rents all tenants can file harassment complaints in housing court, which did not exist before 2019.

Before 2019, the only tenants who could file harassment complaints were rent regulated tenants. Now, anyone can file a harassment case in what is called the HP part in housing court, which is the part that adjudicates HP proceedings. Which are proceedings to get repairs done. And we've seen some pretty incredible decisions coming outta housing court where [00:22:00] landlords were ordered to stop harassing and in some cases we're actually fined.

You know, I don't know what the specifics are and it's hard for me to, you know, opine on whether or not what this particular super is doing constitutes harassment. But I have been involved in several of these cases over the years, including one that always. Is very memorable, where the, the superintendent, I had some three tenants who were all women and the superintendent was when they were away, would enter their apartment and go through their personal possessions and they caught him on camera.

They installed a nanny cam in their apartment. That's, that's clearly harassment. I, I didn't have to do very much to get that superintendent fired. This sounds more like it's on the, it's closer to just courteousness and I, I, I'm not sure how much can be done about it. Okay. 

Emily Myers: We have this question in the chat. What strategy would you [00:23:00] use if a tenant lives in a rent stabilized apartment and is experiencing severe mold issues? Mold is. A violation of the warranty of habitability, isn't it? So? What's your advice there?

Sam Himmelstein: Yes. Mold is a big part of my practice. It's very, very common. It comes about from persistent unattended to leaks.

Which where the, where the walls or floors or ceilings are moist for long periods of time and they build up mold. And we have at our firm a very, very specific way of dealing with these cases. So it's essential to get a expert in a mold remediation company, a knowledgeable. Reputable company to come in and do mold testing because your observation of the mold doesn't mean very much in court.

And if [00:24:00] you call H P D, which is the Department of Housing Preservation and Development, and you complain about mold, they will send an inspector. But only if there's visible mold will they place a violation and they won't discuss the extent of it or the type of the mold. They don't do testing. What an environmental expert will do is take SA air samples and scraping, send them off to a lab.

We'll tell you the type of mold that the, that is in the, the walls and ceilings, whether it's dangerous. You know how extensive it is and will also recommend a mold remediation plan that complies with the Department of Health Guidelines. Department of Health has guidelines as to how mold has to be remediated.

Unfortunately they're just guidelines and if the, what very often happens in these cases is that we write to the landlord and we insist that the mold [00:25:00] be remediated. You know, again, everything comes down to money. The landlord wants to go in and spray some bleach on it, and we're insisting that they retain a mold remediation company, a licensed company, to do the remediation, and then hire a third company to do post remediation testing, which is required by the Department of Health Guidelines.

And. These cases often end up in the HP part of housing court, and what we grapple with, and I can't tell you that it's completely resolved, is. Trying to convince the judge in the HP part that the mold remediation has to be done the way our expert says, or whether the landlord can just do it the way they want.

And if it doesn't address the problem you have, then you have to come back. And that is an unresolved issue. Unfortunately at this time. If the, if some city agency could see fit to making these guidelines from the [00:26:00] Department of Health mandatory. It would solve the problem. But the, the thing I wanna emphasize is that you have to hire an expert.

I'm not, I guess I'm not supposed to make recommendations here, but there is a company that we use that I've been using for 25 years that is far and away the best. And if anyone wants to contact me, you know, o online, send me an email. I'll be happy to provide it to you. 

Emily Myers: Yeah, I mean do, do you advise using a license, presumably getting a, making sure that they're licensed is the first step. 

Sam Himmelstein: They're certified mold inspectors? Yes. Yes. But there's, there's one company that in New York that works with, that likes working with tenants and. Is very, very well recognized in the courts and always qualified as an expert. And it's the only company we use. So again, if people have this issue and they wanna send me an email, I'll be happy to give you that information.

Great. 

Emily Myers: So actually we have another [00:27:00] question. For a rent-stabilized building, the current lease says no smoking or pets allowed, but the original lease from 55 years ago never said that. So is my, is it, do I have the right to have a pet or to smoke? Is that allowed? What? And he asked also, what about a support animal?

Well, obviously there are different rules with regard to support animals. So perhaps you can ask, you can just address how, whether a lease you know, you're in a rent stabilized building and if the lease doesn't address smoking or pets...

Sam Himmelstein: So, yeah, if, if, again, if the original lease did not restrict pets or smoking you can then you can have a pet and you can smoke in your apartment.

And if the landlord were to try to evict you for having the pet, you'd win the case because of that original lease. If the original lease contained a no pet clause and was then renewed, that clause would project if you [00:28:00] then get a pet. New York has a law that says that if the landlord finds out about the pet, And doesn't take any steps for three months after fi obtaining that knowledge then they can't enforce the clause.

And the issue of how they obtain that knowledge is very broadly construed. So it, it means if, if the super saw the dog or if the doorman. Saw the dog. When the tenant walks it at night, that knowledge is imputed to the landlord. And from that first encounter after the passage of three months, that dog is protected.

It would not protect. A subsequent dog. In other words, it that the three months would start running every time you get a new pet. Emotional support animals are an exception. If you have a bonafide need for an emotional support animal you know, you have a [00:29:00] diagnosis from a social worker or a psychologist or a psychiatrist you have a right to have a pet despite what the clause says.

And I have yet to see a landlord fight a claim of an emotional support animal. It it's almost an impossible case for them to win because the courts generally don't want to. Get involved in doing a psychiatric examination of the tenant to see if they really need one. So now the smoking issue is a different issue.

This comes up a lot. The, if again, the same rules apply with the lease. If there's nothing in the lease the original lease, then it, then yes, you can smoke. Buildings are now required to have smoking policies. And you know, some buildings are considered no smoking anywhere in apartments, anywhere in the hallways.

However, those rules can't be imposed on rent-stabilized tenants. Who again have, don't have a, a no smoking[00:30:00] paragraph. Now what happens in these cases is that very often a tenant is smoking and, and the neighbors are complaining. You know, the, the neighbors say the smoke is traveling from that apartment to mine.

My kids have asthma. It's, it's, it's aggravating their asthma. I'm not unsympathetic. But what the law requires in that situation is that the landlord takes steps to stop the smoke from traveling from one apartment to another, either by, you know, installing some kind of negative airflow or something like that.

And yeah, and you know, frankly, when I have clients in that situation, who are the smokers, I urge them to take steps. Also to, you know, get some kind. There are devices that, you know, will, will, will suck the smoke out the window and things like that. And I, I, I urge them to do that, just to respect their [00:31:00] neighbor's health, you know, so, but, but again, you know, they're allowed, you're allowed to smoke if there's no clause in that original lease.

Emily Myers: Interesting. Okay. Well, we have just a bit more time, so Sandy asks, I am renting a one bedroom condo in Turtle Bay for 4,000 last September, the gas in the building was turned off, so I haven't had a stove or an oven. In December, they shut down the dryers supposedly for 30 days, but now they're saying it's delayed until September.

Can I negotiate the rent at renewal time? I think we'd say always negotiate at renewal time. I mean, success isn't guaranteed. You can always try. What, how would you advise Sandy?

Sam Himmelstein: Yeah, again, another incredibly common problem in New York City right now, and as with many problems, you know, I dunno if you remember, but a few years ago there were some very well publicized gas explosions in New York City and after that the utility companies and the buildings department cracked down [00:32:00] on gas issues.

And now whenever there's a gas leak, They come in and they inspect all the pipes in the building, and if there is a single leak anywhere, they shut down the gas. And very often it takes weeks, months to get the gas back on. So as, as a rule of thumb, when a tenant doesn't have gas, they are generally entitled to an abatement of somewhere between 10 and 20%.

More if it affects, you know, if they have a dryer and a stove less, if it's just a stove is it worth going to housing court over that? I am not sure, you know, you would have to withhold rent. The landlord would sue you. You'd ask the judge for an abatement. On the other hand, when tenants band together in these situations, again, the issue of forming a tenant association and approach the landlord [00:33:00] and say, look, we have no gas.

Landlords will generally agree to an abatement in that range until the gas is restored in mo in almost all cases in my experience. So yes, you should try to negotiate an abatement. And as you said, when renewal time comes, you should always negotiate. But that would be a kind of a chip on your side of the bargaining table because.

If, what I would say to the landlord if I were the tenant is, look, if I move, you're not gonna be able to re-rent this apartment because no one is gonna rent an apartment with no gas. So I'm, so, I'm, I'm all you got. So, you know, unless you're gonna reduce my rent by 15 or 20%, I'm gonna leave. And then the landlord is gonna have no rent on the apartment.

So that's how I would approach that negotiation. 

Emily Myers: Great. That's good practical advice actually. I think we had one follow up questions on supers. Do buildings over a [00:34:00] certain amount of apartments have to have a live-in super?

Sam Himmelstein: Are there one? Yeah. I wish I memorized this. I, it's either a, it's either 11 or 13 I believe.

And if it's that number or over there has to be a super in the building or within, I think it's 200 feet of the building. Those are roughly the numbers. I, I think if you just Google it, that's how we all do legal research by the way, these days. If you just Google it and say, you know, does my building have to have a superintendent in New York City?

It'll pop right up. But the numbers are somewhere in that range. 

Emily Myers: Or you can always go to Brick Underground as well, because we've probably covered it somewhere in our, in our coverage. so okay. That's, that's interesting. We had, Marjorie wants to know - this is a little bit broader, less sort of specific - how has the pandemic and the new rent laws affected the frequency and amount of tenant buyouts? 

Sam Himmelstein: Very interesting question. The, [00:35:00] so just a little background. In 2019, the New York State legislature passed the Housing Stability Tenant Protection Act, or as we call it in the tenant community, HSTPA and HSTPA experts have looked at this. HSTPA the most sweeping change in estate's, landlord tenant laws that went all in favor of the tenants. In the history of New York, of the United States it changed everything. Perhaps the major change though, the most important one, was that it outlawed high vacancy destabilization and high income destabilization.

So what that means is that in 1993, Under the Pataki administration until 2019, landlords who were able to legally raise the rent of a rent stabilized apartment above a certain threshold [00:36:00] could then deregulate the apartment and charge market rates so that. Three bedroom upper West Side apartment that was renting for $2,200 a month is suddenly going for eight or $10,000 a month.

And hundreds of thousands of apartments in New York State were deregulated that no longer exists when a rent stabilized apartment becomes vacant. Now, unless it's in a co-op or a condo, the landlord cannot destabilize it, and the most they can raise the rent even if they renovate it is $89 a month. So why would any landlord in his right mind buy a tenant out under those circumstances that what used to fuel these buyouts was the fact that if the landlord got that tenant out of that apartment, they would immediately see a, a multi-thousand dollars increase.

And whatever they paid, that tenant they'd make back in three years, or five years or six years[00:37:00] that doesn't exist anymore. So, The, the number of buyouts that I, that I see in my practice has drastically decreased. I still see them in co-op and condo situations because if you're in a, if you're a rent stabilized tenant in a building that is converted to co-op or condominium, even though you are still stabilize, the minute you vacate that apartment is deregulated.

And the landlord can sell it or rent it at market. So that one situation we see them. And the other is where the landlord can, can turn the apartment into what we call a Frankenstein apartment. Maybe some of you have heard this phrase. This is when the landlord combines the apartment with an apartment nearby and creates a larger apartment or chops the apartment up into smaller apartments and under current law.

They can then charge what is called a [00:38:00] first rent for that newly created apartment or apartments, first rent, meaning whatever the market will bear, whatever the next tenant is willing to pay. But then the apartment goes back into rent stabilization. So in those situations, we're still seeing some buyouts.

However, there is legislation pending, which would outlaw Frankensteining, and there is. There, the D H C R is considering outlawing the practice as well. So landlords are a, are a little bit queasy now about doing buyouts in those situations because they're afraid that the law will change and they won't be able to do what they planned.

The other thing is that landlords are, you've probably read about, many of you have probably read about this, landlords are warehousing apartments throughout this, throughout the city. In, in, in the hope. I think that somehow the legislature is gonna cut [00:39:00] back on some of these rules and there is also a case that may make its way to the Supreme Court.

Which is challenging a lot of the provisions of HSTPA, including the, the the ban on deregulation and that case lost in the lower court and is, you know, making its way up. We don't know if the Supreme Court will take it. And you know, some of us are a little bit nervous about what this Supreme Court might do with that case.

So I think some landlords are just leaving their apartments vacant in the, in the hopes that they get some relief from the courts or the legislature. 

Emily Myers: Yes, we've certainly written about, about warehousing. But actually one important question I think for New Yorkers is how do you check if your apartment is rent stabilized?

Because I know that you deal with a lot with illegally deregulated apartments. Is there a easy step process to check that your, whether your partner does rent stabilized? The, 

Sam Himmelstein: the There [00:40:00] is, but the problem, well, the way you check is you. Get the apartment registration history from the Division of Housing and Community Renewal.

So landlords are required to annually register rent stabilized apartments. So if you obtain this history, you'll be able to see how long the apartment was stabilized, what the rent was, when it allegedly became destabilized, what the rent was at that point. What the threshold was at that point that the landlord needed to get to in order to destabilize?

Unfortunately, you probably need to bring that information to a lawyer. But here's the difficulty. The D H C R will not give anyone who walks off the street the rent history for an apartment. They have to prove that they're connected somehow to the apartment. You have to produce either a lease or a [00:41:00] utility bill, or a rent bill or some other document to show that you are the tenant or an occupant of that apartment.

So if you're not in it yet, It's very hard to get that information. And it used to be if you had that information, you could walk into one of their offices and get, get it. Since the pandemic, they've made it harder to do that, and what they prefer to do is simply mail the information. To the apartment in question, but if you're not yet in that apartment, you're not gonna get that mail.

So I guess the best thing to try to do would be to bring, in other words, let's say you have a, a piece of paper from a broker, or let's say the landlord has sent you, has agreed to rent you the apartment and has sent you the lease to, to look over and sign. You might be able to run down to the D H C R and say to them, look, I, I'm [00:42:00] gonna be the tenant of this apartment.

I want to see the rent history. I honestly don't know whether they will give it or not to a prospective tenant. I've never seen that situation. So the answer is generally you gotta move in, then request the rent history, then take it to a, an attorney to analyze whether you have a claim. That the apartment was improperly deregulated and that you in fact are rent stabilized, which by the way has become a huge part of our practice since the passage of HSTPA.

Emily Myers: Sam, I know we set aside 30 minutes for this q and a and time has flown by, but I think it might be interesting for our audience just to hear about what kind of issues you are dealing with in your practice right now. Yeah. Is, is that something you. 

Sam Himmelstein: Yeah. So the, again, the, the, the illegal deregulation cases are, are huge.

We, we get inquiries from many, many tenants who come to us and say, you know, I think my apartment should be [00:43:00] stabilized. I got this rent history, and it, you know, it, it's impossible for me to summarize the law here. Because there are a lot of issues about how far back you can go and what the statute of limitations is and what kind of overcharges you might be entitled to.

The good thing is that there is no statute of limitations. If you bring a case and you're challenging the status, in other words, you're saying, you know, it's not so much an issue of the rent I'm paying, I just wanna see if I'm stabilized. But the courts and hispa. Well, hispa actually extended the statute of limitations on rent overcharges to six years.

The, the, the, the issues come up is what happens when the deregulation took place 15 years ago. You know, you have a, a tenant who was living the last rent, stabilized tenant, supposedly was living in the apartment in 2005, was paying a [00:44:00] thousand dollars a month. The next tenant, it says the apartment was destabilized.

Will the courts allow you to go back that far? And challenge that. And pretty much the, the recent holdings have said, unless you can establish fraud, you can't do that. And the, and there have some, been some recent appellate decisions that have been bad for our side. So, but, but that is still a rather large part of our practice and.

Some of those cases are in Supreme Court, some are in housing courts, some are at the D H C R. The other common situation we're seeing are, especially during the pandemic, were lease breach cases. You know, suddenly people were thrown outta work. They had no income, they moved out. Of their apartments or they stayed and they stopped paying rent because they had no income.

At first we tried to argue that the pandemic was what the law calls a force [00:45:00] Maur event similar to a hurricane or a flood. Those arguments were slapped down. Both in the commercial and residential context. But we did get a lot of lease breach cases, both in the terms of where people were still in the apartments and where people had left.

And we also get a lot of cases where people move into an apartment and it's in terrible shape and they, and they want to know, Are the conditions bad enough for us to be able to leave and break the lease? And that really depends on how bad the conditions are. You know, if there's a couple of mice and roaches, that's probably not gonna do it.

On the other hand, if you know the entire apartment is leaking and flooding and there's problems with the heat and hot water, that'll probably be enough. What we, what we've seen a drastic drop off in is non-primary [00:46:00] residence cases. That used to be the number one case in the firm. Those are almost gone for the same reason that you don't see buyouts.

Why would a landlord spend, you know, tens of thousands of dollars on a lawyer to get possession of an apartment that they could only raise the rent $89. So you don't see those. And what you also don't. What we're finding is that landlords are much more willing to grant succession to tenants for the same reason.

If they fight it and they get the apartment back, what do they gain? So we're finding that succession cases, which used to be a huge part of the practice. Now all it involves sometimes is writing a letter. Providing some proof that, you know, the tenant has succession rights and the landlords, for the most part are not contesting them with a court fight.

Emily Myers: Interesting. Yeah. So it is now much [00:47:00] harder for landlords to deregulate these apartments and that's having a trickle down. Well listen Sam Thank you so much for sharing all this information. And, and thank you for everyone to for coming to our q and a. We will post this recording online so you can feel free to share this with anyone you think will be interested like, subscribe and comment.

I'll point out again that Brick Underground also has lots of articles on every aspect of renting, whether you're looking for a place or you want to find out if your rent stabilized. We also have market reports, which are a temperature check on the market and give you information about how much leverage you have in negotiating the rent when you sign the lease, or at renewal time.

And of course the latest data does put landlords very much in control, but there are still protections for tenants and we are here to empower you with that knowledge. So please do head to brick underground.com. Big thank you Sam. Thank you very much to Sam Himmelstein of Himmelstein McConnell Gribbin & Joseph please do find him [00:48:00] online and subscribe to our newsletter at brickunderground.com. And thank you very much for joining us.

Sam Himmelstein: Thanks for having me. I appreciate it.

Emily Myers: All the best. Thank you, Sam.

That was Brick Underground's Office Hours with tenant attorney Sam Himmelstein who also writes the popular "Ask a Renter's Rights Lawyer column — I hope you found it useful. You can see the video on YouTube @brickunderground. If you have a question about real estate in New York City get in touch via our website. For more, subscribe to our newsletter at brickunderground.com. I'm Emily Myers. Jenny Falcon edits the show.