A Tenant's Guide To Housing Court
Part 3 -- How To Force Your Landlord To Repair Violations
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What Is A Housing Part (HP) Action?
HP actions are lawsuits brought by tenants or groups of tenants against landlords to force them to repair bad conditions and provide essential services, like heat and hot water. A landlord's failure to make a repair or provide an important service is a violation of the New York City Building Code. In an HP action, a judge can order a landlord to correct Building Code violations. If landlords refuse to make repairs ordered by the court, they can be fined or even jailed. This section tells you how to start an HP action, how to handle the case in court, and how to follow up to make sure the violations are actually corrected.
Another way to try to force your landlord to make repairs is to withhold your rent. (See Part I) HP actions are different from rent withholding in that they can never end in eviction. When you withhold your rent, your landlord will usually send you a dispossess notice that requires you to go to court to explain why the rent was not paid. If a judge orders you to pay the rent and you do not, you can be evicted. In an HP action you take your landlord to court and the case deals only with the conditions in your apartment or building. Money owed to the landlord should not be discussed in an HP action.
How To Prepare To Bring An HP Action
Unless you have an emergency situation, you should do as many of the following things as you can BEFORE going to court:
- Send your landlord a dated letter listing all the bad conditions in your apartment or building and demanding that the landlord repair these conditions. It is best to send this letter by certified mail, return receipt requested, AND by regular mail. Keep a copy to take to court. List building-wide violations separately from violations in individual apartments. Be specific about both types of problems.
- Organize the tenants in your building and send the letter as a group, if possible. Tenants are usually more effective in dealing with their landlord as a group. For help in organizing, see the list of tenant councils and community organizations.
- Call the Code Enforcement Unit of HPD and ask them to send an inspector to your building to record the violations. The telephone number is (212)824-4328. One phone call will usually not be enough. Call every day until you get results and have other tenants in your building do the same thing. This is most important if there is an emergency repair in your apartment and you want the City of New York to make repairs. Do not hold up your case waiting for the inspector because the Court will order an inspection when you file the case. (212)824-4328 is also the number for heat and hot water complaints. It is important to make the calls even if you don't see immediate results because you are making a paper record that may prove useful in court later.
When the inspector comes to your apartment, follow him or her around to point out violations that might otherwise be missed, such as a fallen ceiling in a closet. Make sure that the inspector writes down every bad condition.
- Keep a record of the days you do not have enough heat and hot water using the "Heat and Hot Water Record" (see Sample D side 1, side 2). Use a thermometer to record the temperature inside; listen to the radio or call the Weather Bureau (212-976-1212) to get the outside temperature. Do this at least three times a day every day that heat is inadequate. For heat requirements, see above. This is critical in heat cases. If you don't keep a list it is often impossible to remember the dates. Also, the Court will find your testimony more credible if you have a list made at the time you had no heat or hot water.
- Make your own listing of the bad conditions in your apartment or building. Take color pictures if possible.
It is not necessary to do all of these things before going to court, but doing them makes your case stronger.
If you have an emergency situation, you should go right to court to start the HP action. If the emergency situation involves denying you essential services such as shutting off your heat, hot water, electrical or gas services, you should also call the police (either "911" or your local precinct). A denial of your essential cervices is an unlawful eviction, which is a crime in New York City. The police are supposed to arrest your landlord if he or she refuses to restore your essential services when ordered to do so by the police.
It is not always easy to get the police to respond, so be persistent. Ask to speak to the supervisor or desk sergeant if the officer you speak to will not respond. Refer the police to Procedure Number 117-11 of their patrol guide, which describes what the police should do.
If the essential services are not restored with police intervention, or if other conditions still need to be fixed, start your HP action right away.
The Clerk will give you some papers to fill out and will ask you to pay a $35.00 filing fee for an "index number." The same fee is paid by both individuals and tenant groups. If you cannot afford the $35.00 fee, ask the Clerk to let you file as a poor person. The Clerk will give you a poor person's order to fill out and will tell you to go to a judge in the building to have it signed. (see Sample E side 1, side 2). You will then have to bring the order back to the Clerk to get a free index number. It is unlikely that a tenant group will qualify for poor person's relief even though individually you might. Therefore, be prepared to pay $35.00 if a group is initiating the action.
The papers needed to start an HP action are an Order to Show Cause and a Verified Petition. The Clerk will fill out the Order to Show Cause (Sample F). The Order to Show Cause will give you a court date and time to be in court. You should fill out the Verified Petition as completely as you can. If you are unsure about how to answer anything, ask the Clerk. If that does not help, call a Legal Services office. A list of the offices for all neighborhoods starts below.
On the form that says "Verified Petition" on the upper right hand side (Sample G) fill in all of the violations both in your apartment and in the building as a whole. Start with the most serious ones. Add additional pages if you need to. You must list everything. If you forget to list an item and then try to mention it in court, the court will not consider it because it was not included in the papers served on the landlord. The Verified Petition does not give you much room to list conditions. Do not feel limited by the form. Violations should be listed under number 3 on the Affidavit form or on a separate sheet. If you use a separate sheet, be sure to put the case name and index number on the extra sheet. The Clerk will notarize the Verified Petition.
If you are filing an HP action as a group, each individual tenant must fill out and sign a separate Affidavit listing all of the violations in his or her apartment. One person from the group should take responsibility for putting all the public area violations on his or her Affidavit.
When you have completed the Verified Petition, go to the Clerk. The Order to Show Cause, like the poor person's order, must be signed by a judge. The Clerk will tell you where to go to get the judge's signature.
At the time you initiate the action, the Clerk will also assist you in filling out a form to request an inspection before the court date. (Sample H). Pay careful attention to this form and again list all the violations. The form includes a phone number. Call the next day to receive an inspection date. Make sure you do this and make sure you are home on the inspection date. The inspection is very useful when you get to court. If you aren't home on your inspection date it is possible that the court will adjourn your case for another inspection.
How To Serve The Papers
The Order to Show Cause itself will tell you how to serve copies of the papers on both the landlord and the Department of Housing Preservation and Development (HPD). The judge will most likely order you to mail copies to them by certified mail, return receipt requested. The judge can order you to serve them in another way, such as by BOTH regular AND certified mail. In some situations, you can be required to deliver the papers in person. If you try to deliver them in person and the landlord or the landlord's agent refuses to accept them, leave them there anyway. Then write a statement saying who you served and when and where you served them. Have it notarized. NOTE: Check the Order to Show Cause to see what type of service is required. If you do not serve the papers properly, or can't prove that you did your case will be dismissed and you will have to start all over. If you have questions, ask the Clerk.
How To Handle An HP Action In Court
- The court will retain the original Order to Show Cause (OTSC) so that it can be placed on the court's calendar. The OTSC will contain a date when you should return to court. It will also tell you to go to room 306 at 9:30 a.m. on that date. You must come to court on that date and you must arrive no later than 9:30 a.m. If you do not show up or if you are late, your case will be dismissed by the court. There will be nothing you can do, even if you arrive late. Your only option will be to start the case over or make a motion to vacate the dismissal if you had a very good reason for being late. This type of motion is difficult for tenants to make on their own.
- When you arrive at court, go to room 306 and wait for the calendar to be called. If you step out for a few minutes you may not hear your name, and your case will also be dismissed even though you were there. This means you would also have to start over again.
- Remember to take your proof of service to court. This is essential. Without this proof your case may also be dismissed. You must bring with you the certified mailing receipts with the certified numbers on them from the post office, for your landlord and for HPD. Also, take with you the green return receipt cards if you have received them and your Affidavit of Service. The Affidavit must be filled out and notarized and must describe how you served the papers.
- When your case is called, if you are ready to proceed with your case, answer "tenant ready." Then, one of several things may happen.
- The landlord may answer "ready" too. In this case the court or an HPD attorney will discuss your case with you and your landlord. If there is an inspection report and the landlord agrees to repair the listed violations, you will enter into a consent order with the landlord, in which he will agree to make repairs within specific time periods depending on the seriousness of the violations. You will be given a copy of the consent order signed by the parties and the judge. If the landlord does not agree to make the repairs, the court may hold a trial. At the trial if the judge finds that there are violations, the judge will order the landlord to remove the violations within a stated number of days, depending on how serious the violations are. If the landlord does not make the repairs within the stated time, you can take the case back to court for ~ hearing on fines against the landlord. (See below, "HOW TO FOLLOW UP").
A lawyer for the New York City Department of Housing Preservation and Development (HPD) may represent the Department and assist you at the trial. Although HPD attorneys do not actually represent tenants, they are often helpful. Get the name and telephone number of the HPD attorney. A copy of the order signed by the judge will be mailed to you. If you need to take the case back to court because the landlord has not made the repairs, try to contact the HPD attorney first. (See below).
- If the landlord does not answer at all, you will have an "inquest." This is a one-sided trial at which you present your evidence. In this situation you must have full proof of service or your case will be dismissed. You will be questioned directly by the judge regarding service and conditions in your apartment. Following this, the judge will likely order the landlord to correct all the violations on the inspection report. In this situation it also may be possible to ask the judge to consider additional conditions. The order will be written by the clerk and will be mailed to you and served on your landlord by HPD. It will go into effect when you receive it by mail.
- The landlord may answer "application." This means the landlord wants an adjournment, or delay of the case, to another day. Unless you also want a postponement, you should oppose this by telling the judge that you are ready to prove your case. Tell the judge about any violations in your apartment. If you oppose the adjournment, the judge will decide whether to hold the trial or delay it. If the judge decides to delay the case, urge the judge to grant only a short delay, especially where your conditions are serious. Also, ask the judge to mark the file on your case "final against landlord." This means that the trial must be held on the new date and that the landlord cannot get another adjournment for any reason. If the case is postponed, be sure the new date is one on which you can come back. Write down the date and room number of your next appearance.
- If you are not ready for the trial, answer "tenant application" and explain to the judge why you need an adjournment. You may need time, for example, to get a witness or to compile evidence to help you win the case.
Sometimes the landlord will want to discuss "settling" the case. The best settlement for a tenant is to have the landlord consent to an order to correct the violations. This has the same effect as an order after trial. The landlord may propose other types of settlements. You must decide whether they will actually solve your problem. Do not sign anything unless you understand it. You have the right to a trial if you are not happy with the proposed settlement.
In court you should be firm, yet polite. Bring as much proof as you can, such as witnesses, letters, documents, records and photographs. Do not be afraid if the landlord has a lawyer.
Rent is not an issue in an HP action, although the landlord may bring it up in court. If this happens, tell the judge that you object and ask that the hearing cover only the violations.
If HPD has recorded violations in your building or apartment, they should show up on a courtroom computer. Ask the judge or the HPD lawyer to get the information out of the computer.
How To Follow Up
Depending upon the severity of the violations, the landlord will have set time limits within which to make the repairs. "C" violations, those that are immediately hazardous (no heat or hot water, for example), must be fixed within 24 hours. Hazardous "B" violations (peeling paint, broken windows or mice, for example), must be corrected within 30 days. Non-hazardous "A" violations must be corrected within 90 days.
If the landlord does not make the repairs within the time ordered by the judge, you can bring the case back to court for civil penalties against the landlord. You will be given a letter to use to restore the case to the calendar on the date you first appeared in court. (see Sample I side 1, side 2, side 3) You will also be given instructions on how to send the letter and how to fill out the affidavit of service to prove that you sent the letter. This letter must be filled out and must not have a court date earlier than 8 days from the date of service. To be safe, add a few extra days. If you give insufficient notice to the landlord, the case will be dismissed. Two copies of the letters must be sent to the landlord, one by regular mail and one by certified mail. In addition, this letter must be sent to the court and to HPD by regular mail. On the court date go directly to room 306 at 9:30 A.M. Remember to take the completed affidavit of service. Also have with you the certified mailing receipt as well as the green card if it has been returned to you.
When you return to court for civil penalties, you may be able to settle the case by having the landlord pay a fine. If you cannot reach a settlement, there will be a hearing. An attorney from HPD will assist you at the hearing. Again, HPD is representing the City, not you. You should also remember that all fines levied against the landlord in a civil penalties hearing go to the City and not to the tenant. Nevertheless, civil penalties are very important tools to force the landlord to do the work. This is a procedure that the tenant can do without a lawyer.
If your building is really in awful shape or you are a large tenants' group, you also might try to contact the original HPD attorney that you spoke with when the order was entered to see whether HPD would consider taking your building as a "comprehensive case." This means that HPD will bring its own case against the landlord on behalf of the tenants in your building.
Penalties can also be imposed on the landlord for contempt of court (willfully refusing to obey a court order). A landlord found guilty of civil contempt can be required to pay a fine to the tenant (not the City) in the amount of the damage caused. Contempt penalties are always at least $250 and can be more if specific damages are proven. In extreme cases, the landlord can even be sent to jail and fined $1,000 for criminal contempt. This fine, however, goes to the City.
Getting a judge to find a landlord in contempt involves intricate legal technicalities for which you will probably need a lawyer. If you want to seek contempt penalties, contact one of the Legal Services or Legal Aid offices listed at the end of this pamphlet or a private attorney, if you can afford one.
If the landlord makes the repairs but you are dissatisfied with the way the work was done, you can also restore the case to the calendar for civil penalties and request a hearing to prove that the landlord failed to comply with the court order.
HP actions can be effective in forcing landlords to make needed repairs. They can insure that you get the services you pay for, from heat and hot water to good plumbing, extermination, and a locked front door.
If, however, you or the tenants in your building have problems that you cannot solve on your own, contact one of the community organizations, Legal Services or Legal Aid offices below.
Go to Part 4