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A Landlord’s Right to Access a Tenant’s Apartment in Emergencies and for Repairs Laws and Best Practices

On December 12, 2018, Michelle Itkowitz conducted a webinar for Vendome Media, the publishers of "Apartment Law Insider", entitled "A Landlord’s Right to Access a Tenant’s Apartment in Emergencies and for Repairs Laws and Best Practices".

Here is a link to the Vendome rebroadcast of the program

Here is a link to the materials prepared for the program

Here is an excerpt from the materials:

A.   Statute Regarding Access

1.    The Statute

As always, the best place to start any legal inquiry is by looking at the statute that relates to your question. Owner’s right to access a residential apartment contained within a multiple dwelling is governed by the New York City, N.Y., Rules, Tit. 28, § 25-101 (Owner’s Right of Access and Requirements for Notification) and states:

(a)(1) Owner to give notice. Where an owner or his or her representative seeks access to a dwelling unit, suite of rooms or to a room, under the provisions of §27-2008 in order to make an inspection for the purpose of determining whether such places are in compliance with the provisions of the multiple dwelling law or the administrative code, such owner or representative shall notify the tenants not less than twenty-four hours in advance of such time of inspection.

(2) Where an owner or his or her representative seeks access to make improvements required by law or to make repairs to a dwelling unit, suite of rooms or to a room, such owner or representative shall give written notice to the tenant not less than one week in advance of the time when the improvements or repairs are to be started, except where otherwise provided in paragraph (3) of this subdivision.

(3) Where an owner or his or her representative seeks access to make repairs

(i) that are urgently needed to a dwelling unit, suite of rooms or a room, as in the case where a class C violation of the Housing Maintenance Code has been issued, except where such class C violation is for the existence of a lead-based paint hazard, or

(ii) in the case of an emergency where repairs are immediately necessary to prevent damage to property or to prevent injury to persons, such as repairs of leaking gas piping or appliances, leaking water piping, stopped-up or defective drains, leaking roofs, or broken and dangerous ceiling conditions,

such owner or representative shall not be required to provide written advance notice, but shall be required to notify the tenant or tenants by such actions as telephone, email, or by knocking on the occupant’s door at a reasonable time when he or she would be expected to be present.

(4) Where an owner or his or her representative must make a repair in a public area or other area of a dwelling that may result in an interruption of essential services such as utilities (heat, hot water, cold water, gas, electricity, or elevator) that is expected to continue for more than two hours, the owner or his or her representative shall provide written notice to the tenants by posting a notice in a prominent place within the public part of the building and on each floor of such building at least twenty-four hours prior to such interruption. However, if such interruption is not expected to continue for more than two hours or is due to emergency repairs that were not anticipated and must begin immediately, advance notice is not required, provided that notice shall be posted as soon as possible if such work continues for two or more hours. Such notice shall identify the service to be interrupted, the type of work to be performed, the expected start and end dates of the service interruption, and shall be updated as necessary. Such notice shall be provided in English, Spanish, and such other language as the owner deems necessary to adequately provide notice to the tenants. Such notice shall remain posted until the interruption of essential services interruption ends. A sample notification form is provided in these rules.

(b) Notices to be in writing. Where an owner is required to give notice in advance of seeking access to a dwelling unit, suite of rooms or to a room, as required by subdivision (a) of this section, such notice shall be in writing, dated, and shall contain a statement of the nature of the improvement or repairs to be made, unless specifically stated otherwise in these rules.

(c) Authorization to be in writing. Where a representative of an owner seeks access to a dwelling unit, suite of rooms, or rooms, the authorization of the owner shall be in writing and the representative shall exhibit such authorization to the tenant when access is requested.

(d) Hours when access to be permitted. Except as provided in paragraph (3) of subdivision (a) of this section, access to a dwelling unit, suite of rooms, or rooms, shall be limited to the hours between nine antemeridian and five post-meridian, unless otherwise agreed to by the tenant. Access shall not be required on Saturdays, Sundays or legal holidays, unless otherwise agreed to by the tenant, except as provided in paragraph (3) of subdivision (a) of this section.

Sample Notification Form for Interruption of Essential Services
Please be advised that due to repair work in the building located at _______________, there will be an interruption in the following building services:
heat hot water cold water gas electricity elevator
The interruption in service is expected to begin on ____________________ and to end on ____________________.
The repair work is for the purpose of ________________________________________
Por favor tenga en cuenta que debido a reparaciones en el edificio localizado en ____________ ______________, habra una interrupcion en los siguientes servicios del edifico:
Calefaccion Agua Caliente Agua Fria Gas Electricidad Elevador
La interrupcin en servicio se espera comenzar en ____________________ y terminar en ____________________.
El trabajo de reparacion es para el proposito de ________________________________________

[Emphasis supplied.]

I put the full text of long statutes in my materials when I think they are very important and that people – both real estate professionals and tenants – should read them. Sorry, the law is words, not emojis. In any event, now let us unpack this important statute.

2.    Unpacking the Statute – Three Different Types of Access: Inspections, Repairs, Emergencies and Form of Notice

The statute anticipates three different types of access. First, it talks about access for inspections, which require twenty-four hours’ notice. Second, it talks about access for repairs, which requires a week’s notice.

The notice called for is very specific. The notice must be “in writing, dated, and shall contain a statement of the nature of the improvement or repairs to be made…”. The hours access is permitted are between 9:00 am and 5:00 pm on weekdays, excluding holidays.

Third, the statute talks about emergency situations, which require no written advanced notice. In such cases, the person seeking access “shall be required to notify the tenant or tenants by such actions as telephone, email, or by knocking on the occupant’s door at a reasonable time when he or she would be expected to be present.”

Also, any representative of an owner needs to be able, upon demand by the tenant, to exhibit an authorization by owner, authorize their access.

There is a fourth section of the statute that discusses repairs in public areas, which is beyond the scope of our topic. I leave the full text of that portion of the statute in above anyway.

B.   Rent Stabilized Tenants Have Further Rights Regarding Access

          When the landlord seeks access to a Rent Stabilized unit in New York City for the purpose of an inspection or a showing, tenant must first be afforded at least five days’ advance notice (actually ten, if served by mail) so that the parties may attempt to arrange a mutually convenient appointment.[1]

           C.   A Lease Provision Regarding Access

Of course, a lease can always make those requirements more stringent, so check your leases. 

[1] 9 NYCRR § 2524.3(e).

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Before Being Your Litigator on a Case, Your Landlord and Tenant Attorney Should First Be Your Consultant

October 28, 2018

On October 25th 2018, Michelle Itkowitz spoke on a panel at the LandlordsNY Symposium. The panel was about how it takes a team to properly manage a building, especially in times of crisis. Michelle explained how landlord-and-tenant lawyers should only be a small part of a larger team when it comes to dealing with illegal Airbnb, non-primary residence, or hoarders. Landlords could save themselves a lot in legal fees and get better results in these matters if they involve, at the outset, other expert vendors such as investigators and consultants, who understand and follow the laws and the rules of ethics when it comes to tenants. This panel discussed how mutually beneficial solutions for both landlords and tenants are achieved when the landlord and tenant attorney acts first as a consultant, before acting as a litigator.

Below is an excerpt from the booklet Michelle prepared for the Symposium. 

Before Being Your Litigator on a Case, Your Landlord and Tenant Attorney Should First Be Your Consultant

To a hammer, every problem looks like a nail.[1] To a lawyer who spends every day running around Housing Court doing 25 cases at once with carbon-paper stipulations, every problem looks like it can be solved with a summary proceeding (a Housing Court case).

When owners and managers come to lawyers with problems like non-primary residence, illegal Airbnb, and hoarding nuisances, many lawyers first and only response is – the lawsuit!, i.e. litigation. That is the WRONG place to start. The lawyer should begin every engagement not as your advocate, but as a healthy skeptic of your position. The right thing for your lawyer to start with is questioning everything. The lawyer should test the health of the particular tenancy and the strength of the admissible evidence, to see if they can withstand the rigors of litigation.

For example, in Nachajski v. Siwiec, 55 Misc.3d 133(A) (App. Term 2nd Dept. 2017), a non-primary residence case, the court found that the lease was not properly renewed, thus Golub (the non-renewal period) never opened, and no non-renewal notice could be served. The non-renewal notice is a prerequisite to a non-primary residence case, therefore, even though there was evidence that the apartment was not the tenant’s primary residence, the court found for tenant.[2] Let’s look at an example of an interaction I had with a potential client on this issue:

Landlord:  Hi! My tenant in 6A no longer lives in her apartment, so I want to evict her for non-primary residence.
Lawyer:  OK the first thing I need is a copy of the full lease chain. I need the original lease, and all renewals, all riders, everything. And the DHCR printout.
Landlord:  Well that’s easy. I only have the one lease from six years ago when she moved in.
Lawyer:  Wait! What?! You have not been regularly renewing the lease as per the Rent Stabilization law?
Landlord:  Well…no… told you she doesn’t really live there anymore! I am kicking her out, silly, why would I give her a lease.
Lawyer:  Look – Non-primary residence isn’t a basis for terminating a lease, it’s a bases for NOT RENEWING A LEASE. By law, landlords have to make an offer to renew a Rent Stabilized lease between 90 and 150 days before the end of a lease term (known as the Golub period, after a famous case). During that renewal window, if the tenant is not living in the apartment as his or her primary residence, that’s when you give the tenant the non-renewal notice.
Landlord:  OK well let’s just give her that notice now!
Lawyer:  How can we? Are in between 90 and 150 days of the end of the lease?
Landlord:  No, we are even better, we are 4 years after the last lease expired!
Lawyer:  No! That’s NOT “even better”. That’s not the statute, that’s not how the law works. Not even close! You need to be within the 90 to 150 days before the end of a lease. Not four-years after the end of the lease.
Landlord:  Michelle, I think you are too hung up on these details…calm down…
Lawyer:  OMG the law IS details! And in landlord and tenant law, in particular, details really matter.
Landlord:  OK so I messed up, but what if we just send the notice anyway and see if she leaves?
Lawyer:  I don’t file cases that are defective. That is against the code for attorney ethics and its bad business for me and you. If I file the case and she gets a lawyer and they counter-sue you for something, then I can’t just discontinue. Also, you could end up paying the tenant’s legal fees. And in the time it takes to litigate the losing case, you could have renewed the lease properly and be headed for the next Golub period.
Landlord:  Ok so you are suggesting that I renew her lease!? I want to get rid of her and you are telling me to give her a lease. You are all mixed up, Michelle.
Lawyer:  Sometimes the only way out is through, and you have to go through the proper steps to get to where you need to be in these cases. Here, without a lease renewal in place, you can’t do the right termination of tenancy. Let’s send the tenant a renewal offer. Make the one-year option a zero percent increase no matter what the Rent Guidelines Board says, and perhaps the tenant will take only a one-year lease. Then, while we wait, you can install a camera and collect solid evidence that the tenant is not there.

If your lawyer does not check the lease renewal, you could initiate a whole case, only to lose it on a technicality (a determination it would take about six months to get). In that case, you then need to renew the lease (which takes another three months). And wait for the lease (probably renewed for two years) to expire before bringing another non-primary residence case, assuming the tenant has not moved back in permanently by the next renewal window. If your lawyer discovered the problem before initiating the case, there would be better ways to handle the situation. Offering the tenant a proper, defensible renewal with no funny business might result in the tenant taking the one-year (lower increase) renewal. In this instance, the case is delayed by a year, but it is better than losing the three years in the previous example and it also gives you plenty of time to garner camera evidence before the next termination opportunity in 8 months. 

[2] See also 160 Eagle St. v. Butler, 2017 NY Misc Lexis 4260 (NYC Civ. Ct. Kings Cty. 2017).

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You Don't Need to Chase Your Previous Landlord to Get a Rent Abatement - Get the Abatement from the Building's New Owner!

September 30, 2018: This Q&A post originally appeared on the Tenant Learning Platform blog, where Michelle Maratto Itkowitz is an instructor and guest blogger.

Tenant’s Question:

I’m a tenant of a Rent Stabilized apartment in Brooklyn. The building was just sold and now I have a new landlord. The previous landlord of this building, however, was very bad.

I wish that I had sued my old landlord while he was still around. I want to find my previous landlord and go after that company for breach of warranty of habitability (i.e. no stove, gas turned off, bed bugs, broken flooring in apartment, no door chain etc.) and for a rent overcharge.

How do I sue my previous landlord?

TLP Instructor Michelle’s Answer:

You do not have to sue your previous landlord! Pursue those claims against your current landlord. It does not matter that the bad acts were committed by the previous landlord. Those claims – warranty of habitability and rent overcharge – they “travel with the land”. In other words, when the new owner bought the building, it bought the old owner’s liabilities.

If the old owner owed you a rent abatement for a breach of the warranty of habitability, then the new owner now owes you the same abatement. Dunbar Owner LLC v. Jones, 54 Misc.3d 134(A) (App. T. 1 Dept.; 1/25/17). If the old owner overcharged you, then it’s the new owner’s responsibility to pay you back the overcharge. Rent Stabilization Code § 2526.1 and Rent Stabilization Law § 26-516.

The law evolved this way so that tenants don’t need to chase previous landlords. Anyway, most buildings are owned by single-asset limited liability companies – the LLC is set up for the sole purpose of owning the building. Once the closing happens, the LLC (the previous landlord) has no assets for you to collect from anyway. That’s why you need to bring your claims against the current owner of the building.

Thank you for this question. Finally, I am obligated to say that this answer is for general informational purposes only, does not constitute legal advice, and does not create an attorney and client relationship between you and I or between you and the Tenant Learning Platform.

[End of Guest Blog Post]

The Tenant Learning Platform delivers on-demand, online classes for NYC tenants on specific legal topics, to help tenants prevent and solve problems concerning their apartments, without a lawyer. TLP's first two class offerings are: How To Do Airbnb Legally In Your NYC Apartment and The Laws About Painting Your NYC ApartmentMichelle Itkowitz is delighted to be an instructor on TLP and a guest blogger. 

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Tenant Stopped Paying Rent and Has Not Been Seen – MICHELLE’S MONDAY MANDAMUS!

August 15, 2018

This Q&A post originally appeared in July on the LandlordsNY blog, where Michelle Maratto Itkowitz is the "Legal Advisor".

Tenant Stopped Paying Rent and Has Not Been Seen – MICHELLE’S MONDAY MANDAMUS!

Hi, Michelle here. I am the LandlordsNY “Legal Expert”. I answer landlord and tenant questions. My goal is to post in the blog all of the questions I get from LandlordsNY members (keeping the member anonymous) and my answers thereto, when I think that such questions and answers would be of interest to other people. Let me know if this is helpful. These questions are excellent, keep them coming.

Question:  “I have an elderly tenant that has not been seen in over three weeks. She always pays her rent on time but this month she has not paid and has not been seen by anyone. We called the police this past weekend and they entered the premises through the open kitchen window (screen was down). There was no one there. There are no other phone numbers or family members that we can contact. What are our options?”


Well, you called the police, who then checked for a dead body or a suffering person, and they did not find one. That is always Step One in these situations. You might also want to call Adult Protective Services at this stage

You have also already covered Step Two – attempt to find and then utilize contact information for family of the missing tenant. 

Step Three is to conduct your own deeper investigation.

Ask the neighbors if they know anything.

If there cameras in the common hallways of the building, then you can check to see if the tenant has been coming or going. You should pull the tape immediately, because many systems over-write after thirty days. 

Check the tenant’s file again, especially the rental application for emergency contact information. 

You should google the tenant. Hey, you never know.

You always have the option of having a private investigator run a quick preliminary search. 

You, however, ultimately have to protect the landlord’s rights here. I would wait until the tenant is two months behind, and then have your lawyer serve a statutory Rent Demand. Add extra time to the Rent Demand, give the tenant a full two weeks to pay. If no one pays by the demand date, follow it up with a summary nonpayment proceeding in Housing Court. At the beginning of any nonpayment case, where you are dealing with an elderly person or a person who is physically or mentally impaired, you should call Adult Protective Services again. In any event, before an eviction can be scheduled, APS will be contacted by the Marshal.

It is an unfortunate reality that, at the end of some people's lives, the only person who is watching out for them is their landlord. I see this all the time. I recently was working with a landlord who saved a tenant's life. The tenant had a heart attack and was in no shape to call 911. The landlord suspected something was wrong because the TV was so loud in the apartment. The landlord knocked, and when the tenant's responses were incoherent, the landlord called 911, who found the tenant on the floor. 

Hopefully, the missing tenant here will turn up and pay the rent.

Thank you for this question. Finally, I am obligated to say that this answer is for general informational purposes only, does not constitute legal advice, and does not create an attorney and client relationship between us or between you and LandlordsNY. 

Let me know if you need anything else.

Michelle Maratto Itkowitz
Itkowitz PLLC
26 Broadway, 21st Floor
New York, New York 10004
(646) 822-1805

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Types of Co-Living Businesses and How The Smaller or Medium Owner or Manager Might Encounter Co-Living – and What To Beware Of!

On July 25, 2018, Michelle Itkowitz spoke at a LandlordsNY meet-up at SmartSpace in Brooklyn. Michelle's topic this time was, "Co-Living Defined and Dissected - What it is. What it isn’t. How it’s good for tenants. How it’s good for landlords. And what its limits are." Here is a link to the full materials. Here is an excerpt from the materials:

Types of Co-Living Businesses and How The Smaller or Medium Owner or Manager Might Encounter Co-Living – and What To Beware Of!

A. Co-Living Advertising Platforms

I am encountering many companies (I do not represent any) that have created platforms where landlords can advertise “rooms for rent”.

I think this is very problematic for owners or managers, since, as discussed in detail above, it is strictly illegal to rent rooms in regular buildings in NYC. 

If you, as an owner or manager, advertise a room on such a platform, and subsequently get in trouble for it with the City, the State, or a court, then I doubt you could look to the co-living advertising platform for relief. See La Park La Brea A LLC v. Airbnb, Inc., 285 F.Supp.3d 1097 (USDC CD California, 2017) (Apartment owners and operators brought a putative class action against online housing marketplace asserting state law causes of action alleging that the rentals of their properties on the online marketplace's website purportedly violated their own lease agreements with their tenants. Online marketplace moved to dismiss. The District Court held that an online marketplace was not an information content provider so that it was not precluded from asserting the Communications Decency Act's (CDA) grant of immunity, and owners and operators' claims treated marketplace as a publisher or speaker of the information that tenant users provided on its website, and thus the CDA's grant of immunity preempted the claims.)

B. Co-Living Companies that Manage Your Asset

There are co-living companies that will manage an asset for an owner. The owner is still the landlord, and the co-living company is the property manager.

C. Co-Living Companies that Net Lease Your Asset

There are co-living companies that will net-lease a whole building. In this case, the owner is the landlord and the co-leasing company is the only tenant. Then the co-leasing company becomes to sub-landlord to the occupants of the apartments, the sub-tenants.

D. Risks When Working with Co-Living Management Companies or Net Leasing to a Co-Living Tenant

Co-living, if done improperly, can lead to serious consequences for an owner. I list them here:

If the City inspects and finds, as per HMC § 27-2004(a)(15), that you are renting rooms, then there could be a finding of illegal SRO use, which could result in violations, fines, and vacate orders.

If the building has less than six units, and co-living creates six or more units, and the building was building before 1974, then the building could be found to be Rent Stabilized. If a Building was built before 1974 and contains six or more units, then the apartments therein are Rent Stabilized. This is so, however, even if the building in question had less than six units in 1974, but after to 1974, six units were created in the building. This is so, even if the extra units were (a) illegally created, and (b) subsequently eliminated! See Wilson v. One Ten Duane Street Realty Co., 123 AD2d 198 [1stDept 1987]; Robrish v. Watson, 48 Misc3d 143(A)[App Term, 2nd Dept, 2nd, 11th & 13th Jud Dists 2015]; Joe Lebnan, LLC v Oliva, 39 Misc3d 31 [App Term, 2nd Dept,2nd,11th & 13th Jud Dists 2013] ; Rashid v. Cancel, 9 Misc 3d 130(A) [App. Term 2ndDept, 2nd & 11th JudDists 2005], 124 Meserole, LLC v. Recko, 55 Misc 3d 146(A) [App Term, 2nd Dept,2nd,11th & 13th Jud Dists 2017].

The Tenants of such units could refuse to pay rent if the use of the subject building does not conform to the building’s certificate of occupancy by reason of the break-up of the apartments. Multiple Dwelling Law § 302(b).

E. The Owner-Operator Who Runs the Building with Co-Living

I have a client that is buying and renovating buildings for its branded co-living model. This client is already a big player on the national multi-family scene. 

There is nothing to prevent a small operator from trying a co-living experiment! You can start small and work with just one apartment. 


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