Posted by Dayann on July 12, 2001 at 11:18:54:
In Reply to: Provost vs. JJ. JJ WINS posted by Dayann on July 11, 2001 at 23:13:59:
OK I did more research. After surfing the net, reading a bunch of NOLO stuff and calling everyone I could think of, including pro se lawyers and buddies of mine in law school.
On the issue of retaliation, JJ is basically right, if the law and courts work the way they're supposed to. Provost is right that the bureaucracy does not always work according to the ideal and that in my situation, the LL does not have to automatically install window guards at his own expense.
Provost must be deaf, because I think I made it clear that we've been looking for a new place since March. We aren't dumb enough to just think we can sit here indefinitely if our LL made it clear in writing that he doesn't want us here anymore. Also, we are not happy paying $1100 to someone who won't make repairs, provide adequate heat, or respect our privacy and personal property. No one wants a LL who is going to take your money but still be cheap about heat, or who is going to try to evict you for simply asking for repairs to be made.
Provost says he would have left already. Well, Provost, we would have left too, if we had unlimited funds in the bank and if we could just say goodbye to our jobs and other responsibilities for a week at a moment's notice to pack up all our stuff and our kid and immediately move into the apartment that fell out of the sky for us. Anyone with any sense knows that finding a good, affordable, legal apartmetn in NYC is a painstanking process, and when you have to work, pay a hefty rent to a current landlord, and take care of a baby, you need more than 30 days to move.
In order to cover our asses while we look for a new apartment, we put together two logs. One is a harassment log, documenting any attempt by our landlord to harass us on the issue of our complaints about heat, window replacement, and window guards. We also put together an apartment search log, in which we show what we've done each day to find a suitable apartment, it is set up along the same lines as the job search logs that you're required to keep if you're on unemployment. The purpose of these two logs is as follows: 1. to begin trying to establish a pattern of harassment on the LL's part in direct response to our having made complaint to HPD, and 2. to have proof that we are making a good faith attempt to find somewhere else to go in compliance with our LL's request that we get out.
With regard to the 30 day notice. It wasn't properly served but that is no longer a big deal in the civil court, unfortunately. And its a filmsy defense against eviction. If the LL goes to court for an eviction, there is no law the judge can use to deny him one, since the LL doesn't have to give a reason to have us removed. HOWEVER, if we can show the judge that the eviction is being issued in retaliation for making a request for reasonable repairs out of concern for the welfare of our child, that our rent is paid, that there has been a pattern of harassment on the LL's part since we made our request for repairs and issued our complaint to the City, the judge may gat annoyed with the LL and award us damages $$$$$ under the anti-retaliation clause of the real property law. Or he may not. And even if we are awarded damages that doesn't mean the judge can or will deny the LL his eviction. HOWEVER, if we can show the judge (via our log and copies of letters to prospective landlords or copies of applications that we've sent to management offices) that we are making a concerted effort in good faith to find and move into a new apartment as soon as possible, but that we just haven't been able to find a place in 30 days, we may be able to get a stay of up to 6 months before the LL can legally remove us. This all depends on how sympathetic the judge usually is to tenants in making his or her decisions and in his or her interpretation of the law, and what mood he or she is in at the time our case is heard.
We could withhold the rent due to the LL's refusal to make repairs, but continuing to pay gets us more time and makes us look better. If we withhold the rent we only look just as bad as the LL and to win we need to keep him in the wrong. Also, the LL can use nonpayment as a cause for eviction, and we would have the burden of proving that the place is such a dump that holding rhe rent was necessary. Since there are so many people in much worse situations than us in terms of property that is in total disrepair, using repairs as an excuse to hold the rent would probably not put us in good favor in the eyes of the judge, and we want him to like us, if we want to win. I know this from my own past experience, which was not as bitter as Provosts. A few years ago when I first got out of college I had a LL try to evict me and I ended up walking out with 120 days rent free while I looked for a new place to stay. But that was because it was an illegal apartment and the LL was constantly violating my privacy (she even walked in on me while I was taking a shower and tried to use the emergency repair excuse!). Also, the LL was very argumentative in Court and she annoyed the judge and made it clear that the pain in the ass in my case was definitely the LL.
I don't expect the same results as last time because every situation is different, but I know from my own experience that you can go to court in an eviction proceeding and win.
If we continue issuing rent checks to the LL and he accepts them instead of returning the check to us with a letter of non-acceptance, then the judge can toss the whole thing out and make the LL start over again, because if the LL accepts our rent, he accepts our tenancy and can't petition the court for any holdover notice or any eviction order. This all depends on how sympathetic the judge is to tenants and what mood he or she is in at the time our case is heard. Unless the judge is a total scrooge, we have some chance of getting more time because a child is involved, but how much time is again at the judge's discretion.
Re: Window Guards. NY Tenant posted information on window guard regulations. However, the information posted doesn't help me, because these regulations only apply to multiple dwellings. I live in a private two family house, so because there are only two units, it isn't a multiple dwelling and the window guard regs don't apply. My landlord can ask me to pay for the installation of window guards and although I've paid for them, they'd have to stay on the property when I leave because they are considered to be "permanent or semi-permanent fixtures" under the law, and removing them would result in damage to the LL's house, which I would be liable for.
I don't necessary have to pay the LL $300 though. If I can find window guards that meet the City's requirements that cost less, I can give the LL the information about where to get the cheaper guards and issue him a check or money order covering the cost of their purchase and installation. I already did comparison shopping prior to asking him for the repairs or making a complaint to the City, and I was able to find window guards that would cost just under $200, sales tax included. The City information I found says that either I or the LL can install, but I don't have to install them if I don't want to. I think that it is best to use common sense and let the LL do it, so that if there is any damage to his house, etc., we can't be held responsible. It's a waste of time and money to hire a contractor for such a simple set of repairs.
I'm posting all this for anyone else who might have a similar situation and comes to this site for help. A good resource for information on window guard installation is the Department of Health's website. You can get it by going to www.nyc.gov and clicking on the appropriate link. Once you're in, you can do a search or look up window guards in the A to Z index. The site includes very specific detailed information about the law, including a link to the codes governing window guards, and there is a list of window guards that comply with government standards so you can be sure you buy the right ones. There is also a step by step guide on installing window guards properly. It doesn't pay to call the Dept. of Health's complaint line or the Window Falls Prevention Unit because all you'll get is no answer or a chance to leave a voicemail that may never be returned.
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