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Entered into a stip that I'm uncertain about

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Entered into a stip that I'm uncertain about

Postby tenantintrouble » Mon Jan 16, 2012 5:39 pm

I stopped paying about four months ago and have accumulated arrears of about 5000. I withheld rent because the landlord accumulated 8 open HPD violations. I just recently had a hearing with the landlord's attorney in a nonpayment case, where we both signed a stip.
We agreed that I would go on a payment plan to pay the arrears gradually over the next half year.
We also agreed that the landlord would come make repairs for the violations opened BEFORE the hearing. In exchange I would withdraw my HP proceeding (which I brought) and DHCR proceeding for rent abatement.

Since the proceeding there are new Class B violations. There are now 20 violations overall. The landlord is scheduled to come in a week to make repairs. However, based on the exact wording on the stip he does not necessarily have to make the NEW repairs that have opened since the stip.

Did I screw myself over by signing this stip? Should I bring a new HP case? Motion to reargue? Can I still bring a DHCR proceeding?

Any help would be greatly appreciated.
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Postby TenantNet » Mon Jan 16, 2012 6:18 pm

What kind of violations were they? Serious? Class A, B or C?

Do you have the money in escrow? Are you repped by a tenant lawyer?

What kind of hearing? In Housing Court? In front of a judge? Please describe what happened as the use of the word "hearing" is ambiguous.

You mention it was a non-payment, then you say it's a HP Proceeding. It can't be both. If it is a real non-payment, are you seeking a rent abatement as a counterclaim (the DHCR case would not be seeking a rent abatement, rather a rent reduction, which is different).

Was the stip "so ordered" by the judge? Again, did you have a lawyer (that you hired) advise you on the stip? Does the stip have wording like "final judgement" in it?

Was the stip signed before the "hearing" -- that's what you said essentially.

Please clear up the ambiguities here.

If user "Sky" is watching, please jump in on the HP stuff.
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Postby tenantintrouble » Mon Jan 16, 2012 6:26 pm

Yes I hired a lawyer (who charges very low rates).

Violations were a mix of class A and class B.

The hearing was in housing court. We went in front of the judge and the judge said that for said violations the abatement would probably be small. After the hearing we negotiated for a couple of hours before we signed a stip. The stip does have "final judgment" in it if I default.

I brought an HP proceeding and they later brought a nonpayment. As part of the stip I agreed to withdraw my HP and DHCR claims if they make the repairs.

The stip was indeed "so ordered" by the judge.

Again the stip gives a payment plan for the arrears, dates for repairs (however it alludes to the 8 original violations, since then 12 new ones have been processed by HPD) and consequences if I default (warrant shall execute within 5 days notice of default, final judgment, etc...)

Thanks for the help.
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Postby TenantNet » Mon Jan 16, 2012 8:40 pm

A few things. First, it's not a "hearing." There is a court proceeding that encompasses everything from the service of court papers until it's all over. Terminology is important there are implications with certain words.

Most likely you had a court "appearance" (part of the proceeding) and it was likely prior to any trial on the merits, possibly during pre-trial mediation or motion arguments.

Yes, any abatement for A/B violations would be small, almost not worth the effort other than to force their remediation.

Not knowing all the facts of the case, I'm reluctant to make any conclusions, but having a "final judgement" line in the stip does not give me hope about that particular attorney (no matter what he/she charges). That's something you avoid at all costs. And having an attorney represent you, it would be almost impossible to get the stip overturned or revoked.

I would thing that you do everything to make this case go away. Let the LL make the repairs and pay the arrears. During this time you can send the LL predicate notices about the new violations. If need be, you can start a new HP proceeding (or withhold rent for a non-payment). But also be aware that non-payments can lead to your being on the blacklist. You may need to do follow-up to make sure your name is not on the blacklist -- or removed. That's another reason to avoid a "final judgement."
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Postby tenantintrouble » Mon Jan 16, 2012 8:53 pm

Thanks for the informative response.

My question is, if the landlord does not fix the violations, and I withhold rent, can he just go ahead and evict me immediately?

The stip states "in the event tenant fails to make any payment above, the warrant shall execute forthwith". Basically the landlord wrote the stipulation. What should we do if the landlord doesn't comply with the stipulation (bring an HP or contempt proceeding)?

In retrospect I should have chosen a more experienced attorney. I wasn't able to afford that so I went with someone who is relatively new to the field. However I did agree to go on the payment plan. My main concern is that these Class B violations will prove too costly for the landlord and he'll engage in evasive behavior.
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Postby TenantNet » Mon Jan 16, 2012 9:25 pm

Reread what I wrote. IMO your stip is screwy and can get you into trouble unless you follow it to the letter. And because you had a lawyer it would be near impossible to get it lifted. So don't give them an excuse. You can follow up with new violations later.

I assume you mean the LL lawyer wrote the stip, not the LL himself/herself.

What was your lawyer doing while this was going on? I'd be interested in knowing who your lawyer was (you can send it via private mail without posting it publicly).

If the LL doesn't fix the violations covered in the stip, your remedy is to go back to court and seek a contempt order. DO NOT get it into your head that if the LL is a slacker you can continue to withhold your rent. That would be a BIG mistake. Pay according to the stip no matter what.

For the new violations, you can seek to amend the current HP petition, or start a new one. Why not ask the judge at the next HP appearance? Some times the HPD attorney will be helpful, but not in all cases. They represent the city, not you.
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Postby tenantintrouble » Mon Jan 16, 2012 9:55 pm

Thanks

My last question is - if the stip states that we are withdrawing the HP proceeding, should me and my attorney show up for the first appearance it is due? Or is this forbidden because of the agreement we made with the other side (they won't show up because the stip says it's being withdrawn). I am thinking we can't communicate with the judge if the other side isn't there. Will the judge at least recommend us what we should do. I mean is there any reason for me and my attorney to go?
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Postby TenantNet » Mon Jan 16, 2012 10:52 pm

If it's being discontinued, make sure it is done "without prejudice."

If it's been discontinued then there won't be an appearance. Really, your attorney should be handling this. That is why you are paying him/her.
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Postby Sky » Tue Jan 17, 2012 2:13 am

I agree with TenantNet regarding the bringing a contempt motion if the LL violates the stip.

Discontinuing your HP case seems contingent upon the LL having completed all the repairs that he agreed to in the stip (presumably by some specified end date). One course of action with regard to the pending HP case might be to wait until the stipulated repairs are indeed completed before discontinuing. If you have a scheduled HP appearance prior to the date the repairs were ordered repaired, you could request an adjournment on consent with the LL attorney, then wait to see if the LL upholds his part of the stip. If the LL fails in the repairs the stip entitles you to go forward with the pending HP case.

As the 12 new violations have already been recorded by HPD, there should be no dispute on the LL's part that they do indeed exist so no need for him to inspect to confirm the conditions. Therefor, there's no reasonable grounds for the LL to refuse to repair them. I would think amending the stip to include them, with a definitive repair date, would be the most efficient method.

You can file two (or more) separate HP cases at the same time if they address different claims/conditions. So you can bring a new HP case for the 12 new violations. Simultaneously you could file a new DHCR rent reduction claim (which would permit you to seek compensation for the 12 new violations) or you could likely include a rent abatement claim (due to breech of warranty of habitability) in your new HP case although you'd have to reflect on the HP judge's willingness to grant abatements. Depending on your lease and what department you are in, if you use an attorney in a new HP case you may be able to collect legal fees if the court decides in your favor (i.e., judge finds that the 12 violations exist and issues a repair order) or get the LL to agree to pay your HP legal fees if the case is settled via stipulation. If the LL refuses to amend the present stip to include the 12 new violations, your rebuttal could be that you will pursue some or all of the actions contained within this paragraph. That would be some leverage, but bear in mind along with it comes an increase in court time on your part and also an escalation of litigation.

I would suggest carefully documenting all communications with the LL in writing, especially all access related communications, including detailed scheduling for all repair access (what work to be performed on which date) and follow up immediately if the LL blows off an access date. Also take copious photos before, after, and during repairs. The default tactic that LL's use to try to flip things, is to blame their failure to repair on the tenant for 'refusal of access' whether or not it reflects reality.

Good luck.


PS: this is posted under 'general' so it's unclear if you are rent regulated. You did mention a DHCR claim which leads me to believe that you are rent regulated.
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Postby TenantNet » Tue Jan 17, 2012 7:20 am

Need I mention that Sky has considerable experience with HP actions. Being able to maneuver in housing court depends on your understanding of procedure and flexibility. But be VERY careful to not let the process get out of hand. LL lawyers will turn the process on you and you absolutely do not want to end up in litigation hell where it never stops and you're paying a lawyer (who may or may not be all that good) to stand in the hallway.

One thing to consider is that while you have an attorney for the non-payment case, you probably don't need one for the HP or DHCR cases. As SKY says be very careful that the LL can't claim denial of access. That happens all the time even when you're waiting for them to show up. Take many photos and have witnesses if possible. And when the LL lawyer tries to intimidate you, laugh at them.
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Postby ronin » Mon Jan 30, 2012 3:41 am

Tenant isn't OP already on the Blacklist for having a nonpayment and for filing an HP? That is the big complaint that they don't wait for judgments- have they fixed that?
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