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Could certificate of occupancy online be wrong?

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Could certificate of occupancy online be wrong?

Postby ksh615 » Mon Jan 04, 2021 2:04 pm

Hello,

We are being harassed by a tenant above us and would like to get out of our lease. I am looking for ways to motivate the landlord to release us. We are on the first floor of a multi-family house in Queens, and we have full basement access. Part of our lease includes a cellar apartment which I believe is illegal.

I am also trying to determine if one of the units upstairs is illegal. According to the Certificate of Occupancy online at the NY DoB BIS site, my building is supposed to be 2-family. It is set up as a 3-family. The forms are so old (1947) that the address isn't even correct. I checked the building next to us and they have the same old numbering system on their CoO so I assume at some point the streets/houses were renumbered. Could there be an updated doc somewhere that isn't uploaded?

An old HPD registration indicates that the building has 3 units, although it is currently not validly registered. An illegal cellar conversion complaint on the BIS site from several years ago is titled on the website as "Illegal Cellar Created in 2-Family House," it doesn't say 3-family. This discrepancy between BIS and HPD makes me wonder how I can confirm how many units are legal. No one answers the phone at Dept. of Buildings, C o O office.

Thank you!
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Re: Could certificate of occupancy online be wrong?

Postby TenantNet » Mon Jan 04, 2021 3:23 pm

This sounds familiar ... have you posted here before?

You say the building is multi-family. Four important questions we need to know: 1) how many units in the building? and b) does the owner live in the building? c) when was the building constructed? d) are there any alterations on file since the building was constructed that might trigger the need for a Cert Occupancy assuming one was not initially required?

You sort of answer some of these, but please flesh it out somewhat.

Basement access - does that men you and others have basement access, or is the basement fully contained within the walls of your apartment and no one else has access?

What about utilities I presume would be in the basement, i.e., furnace, boiler, etc. Are those within your apartment or separate? Please be more descriptive to I can understand how much of the basement is within your apartment.

OK, so presuming part of your apartment is in the basement, you say "cellar apartment." Is that a separate apartment? This is more confusing.

Street renumbering - don't know how that works, but check with NY City Planning - they handle street addresses.

Outside all of the above, you say you just want to move. How many months are left in the lease? Is there a significant sized deposit?

I don't know if it applies to 2 or 3-family homes, but the 2019 rent laws put the burden back on the landlord if a tenant moves prior to lease expiration. The LL would have to mitigate his economic loss due to loss of rent.
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Re: Could certificate of occupancy online be wrong?

Postby ksh615 » Mon Jan 04, 2021 4:56 pm

Hello, No - this is my first time posting. I hope I have answered your questions fully, but please let me know if I'm not painting a clear picture. THank you!

a) Units in the building: There are 3 apartments: 1 on first floor (Ours), 2 on second floor. The basement/cellar apartment is part of the first floor lease and I am not considering it a separate 4th unit because of that. We currently live on the 1st floor with a roommate and have an additional roommate down in the basement apartment. Since he was a stranger to us we didn't give him interior access to the house; he uses the exterior entrance only, if that matters.

b) Owner in building: Not now or ever since she purchased it in 2005.

c) Building construction date: per COO Feb 1947. FWIW there is a stamp on one of the COOs that states "Occupancy by more than two families is unlawful and renders the owner liable to prosecution," but again I would like to confirm that the correct COO is actually what's on file since the address doesn't match.

d) Alterations on file: None that I can find, but perhaps I'm not looking in the right place. There's nothing on the BIS page that says anything obvious like "Alterations" and I think I've clicked on every available link at this point. Is there another site for these? There is a second COO that shows a garage (which does exist), but it was filed close to the same date as the original in 1947. The area that says "This certificate supersedes CO #__" is left blank on both COOs in the file. I cannot find evidence of when the upstairs was legally broken into two apartments if it was ever one apartment to begin with. Hard to know since I'm uncertain if the correct COOs are on file. If I hadn't seen that the HPD site acknowledges there are 3 units in the building I would feel more confident that one of the units upstairs is illegal. But on the other hand, the name of the complaint on file with BIS is "Illegal Cellar Created in 2-Family House" so maybe it's a 2 after all.

Basement apartment access: The basement level in general can only be accessed from a staircase from within the first floor apartment or via the rear exterior basement stairs; the second floor tenants have no access to laundry, storage, boiler, etc. The basement apartment has its own entrance from the rear driveway and is approximately 1/3 of all basement square footage, but there is also a door that leads to the rest of the basement which then gives access to laundry, storage, and the staircase up into the first floor apartment.

Utilities: The basement is divided into four rooms. When you descend the interior stairs, you land in a common room. From the common room you can access 3 separate rooms: one with the oil tanks, the 3 gas meters and 3 electrical meters; another room with the boiler, washer, and dryer; and the third is the apartment. Nobody's sleeping next to the boiler, for instance...everything is in separate rooms.

Lease: The lease is a multi-year lease and we have one full year left. It expires Jan 2022.

Thanks!
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Re: Could certificate of occupancy online be wrong?

Postby BubbaJoe123 » Mon Jan 04, 2021 5:26 pm

So, the key question here seems to be whether the basement living space is legal. If it's not, but the space is included in the terms of the lease, then you'd have grounds to argue that the lease is invalid, and leave. Of course, the roommate in the basement space would have to leave as well.
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Re: Could certificate of occupancy online be wrong?

Postby ksh615 » Mon Jan 04, 2021 6:20 pm

@BubbaJoe123 Well, I spoke with an attorney today and was told it does not make the lease unenforceable, which really surprised me. I'd like more information about the 2nd floor units and their validity so there's more financially at stake violations-wise and hopefully she will let us go.
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Re: Could certificate of occupancy online be wrong?

Postby TenantNet » Mon Jan 04, 2021 7:33 pm

I'm a bit tied up, so I'll try to answer parts of your first reply a bit later. FYI, Bubba sort of leans towards the landlords' view of things.

On the attorney, was this a tenant attorney or just a regular attorney. It does make a difference. He/she may not be aware of the 2019 law changes requiring LLs to mitigate their losses. Beyond that, I don't think any housing court judge would enforce a lease for an illegal unit. Talk to a tenant attorney. You might have to get a HPD and DOB violation on the unit. That should be a "C" violation.

The way you describe things, you have one lease that covers two separate apartments. I gather you have to go outside of you apartment in order to get to the basement unit. That makes it two units.

Aside from a number of other issues and with few exceptions, what is known as ADU (accessory dwelling units), commonly called "granny flats" is not permissible in NYC. There was a pilot program in Brooklyn, but I think it's been put on hold. "Granny" is often used because grown-up offspring often use these spaces for the elderly parents. Google "granny flats NYC"

While some ADU might be in converted garages that are on the same lot, but detached from the main house, in many cases what is known as basement or cellar units are just illegal. That has to do with means of egress and proper ventilation (furnaces can give off CO gases), and other things. See https://www1.nyc.gov/site/hpd/services- ... ellar.page

If that's the case, the CofO issue may not even matter and you might be putting a lot of work that's not needed.

Remember they don't have a hold on you. You can move tomorrow if you wish. The question is if the LL can come after you for the rent for the rest of the lease.

But if/when you do go, then both roommates would have to vacate in order for you to return possession to the LL. There are other issues as to what constitutes returning of possession (returning of keys with a witness or a signed acceptance by the LL) and deposits (search the forum on deposits - we've talked about this too many times).
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Re: Could certificate of occupancy online be wrong?

Postby TenantNet » Tue Jan 05, 2021 7:07 am

Some follow-ups...

Apartment registration with HPD (not DHCR). All buildings with 3+ units must be registered with HPD. If the owner is not living on the premises, then this applies to all residential buildings. See https://www1.nyc.gov/site/hpd/services- ... perty.page

Property owners of residential buildings are required by law to register annually with HPD if that residential property is a multiple dwelling (3+ residential units) or a private dwelling (1-2 residential units) where neither the owner nor the owner's immediate family resides.


Read the entire page.

Failure to be properly registered may mean that an owner is not able to maintain a housing court proceeding for rent, but might (as in I don't know) be allowable in Civil or Supreme Court. I believe registrations must be posted in the building (often above the mailboxes). Check with HPD.

If the basement/cellar unit is not legal, either from a zoning or DOB viewpoint, this might be a C violation with HPD or a violation with HPD. Be careful as a vacate order could result in the basement occupant having to move.

I believe the failure to have a legal unit or cet. of occupancy may have an impact on lease enforcement, but see above as to mitigating damages when a tenant leaves.

COO are generally for buildings constructed after 1938, or if alterations occurred after that. See https://www1.nyc.gov/site/buildings/hom ... pancy.page

I do not know if 1-2 family buildings require a COO (lie HPD requires registration). But the DOB page implies they do.

As for addresses, see the DOB BIS system at http://a810-bisweb.nyc.gov/bisweb/bsqpm01.jsp
Look up the block/lot or address and search on that. In the Property Profile Overview, on the top-left, see "View DCP addresses" for buildings with more than one addresses.

Also see the Zola system for a lot of information.

However you might have to contact DCP about addresses that have changed.

As for the "Occupancy by more than..." stamp, you would need to do more research as to which agency and code provision would be violated. I would start with DOB.

As for alterations look at "jobs/filings" or "permits in process." From there select a job number, and then the Virtual Job Folder. I wouold start with the PW1 form, but also look at others. Alterations should be labeled ALT1, ALT 2 (or years ago ALT3).

In many cases, alterations may have been done illegally.

Getting back to the legality of the basement, if there is an interior entrance to the basement area, that might be considered part of the first floor apartment, and therefore not illegal - in other words, a duplex. I gather you just have locked passage from the first floor to the basement.

Just because no one is sleeping next to the furnace, that does not mean ventilation issues do not exist, or that it might be legal.

We have a thread on the mitigation issue at http://tenant.net/phpBB3/viewtopic.php? ... 01&p=58226

Also, see the article below:

https://www.albarticles.com/no-mitigation-rule/
(see below - but know that the author is a landlord attorney and he will spin it for landlords. He's also quite notorious in many ways and we do NOT recommend any tenants seek his services.)

New Rent Laws Abrogate No-Mitigation Rule in Residential Leases
Landlord Representation, Real Estate Litigation, Tenant Representation


Contents [hide]

- Rationale Behind the No-Mitigation Rule
- Abrogation of Rule in Residential Arena
- Conclusion

July 12, 2019

The recently enacted Housing Stability and Tenant Protection Act of 2019, which Gov. Andrew Cuomo signed into law on June 14, 2019, has now completely abrogated the no-mitigation rule in the context of residential leases.

In 1995, the Court of Appeals in Holy Properties Ltd., L.P. v. Kenneth Cole Productions, 87 N.Y.2d 130 (1995), threw landlord tenant law into a tailspin when it held that landlords had no duty to mitigate their damages by re-letting the premises where the tenant abandons prior to the expiration of the lease. Although Holy Properties dealt with a commercial lease, courts widely extended the application of this rule to residential leases as well.

However, the recently enacted Housing Stability and Tenant Protection Act of 2019 (the 2019 Tenant Act), which Gov. Andrew Cuomo signed into law on June 14, 2019, has now completely abrogated the no-mitigation rule in the context of residential leases.

Rationale Behind the No-Mitigation Rule

Generally, the law imposes upon a party who suffers an injury as the result of a breach of contract, the duty to make reasonable efforts to minimize the injury. Wilmot v. State of New York, 32 N.Y.2d 164 (1973); Losei Realty v. City of New York, 254 N.Y. 41 (1930). Notwithstanding this general principle of law, the Holy Properties court ruled that where a tenant breaches a lease by vacating the space prior to termination and the lease entitles landlord to recoup rent following an eviction, the law allows the landlord to do absolutely nothing to re-let the space. Moreover, while the landlord sticks its head in the sand, it can then still sue the tenant for all of the future rent becoming due under the lease through and including the termination date, along with attorney fees and costs to boot. Therefore, it is no surprise that New York’s no-mitigation rule absolving landlords from mitigating their damages following a tenant abandonment of its leasehold before a lease’s expiry—places it in the minority when compared to other jurisdictions—particularly since the rule promotes laziness, which the law abhors.

Although the rule appears, at least on its face, to be counter intuitive, the Holy Properties court rationalized that it serves to impart stability and certainty into business transactions. This is of paramount importance in the context of real property, which is sui generis, thus requiring adherence to established precedents more so than in any other area of the law. 159 MP Corp. v. Redbridge Bedford, — N.E.3d —, 2019 WL 1995526 (N.Y.), 2019 N.Y. Slip Op. 03526. In other words, parties, who are free to contract as they please, will be held to the benefit of their bargain, with the language of their contracts being enforced in accordance with their plain language and meaning. Vermont Teddy Bear Company Co. v. 538 Madison Realty Company, 1 N.Y.3d 470 (2004).

Abrogation of Rule in Residential Arena

In promulgating the 2019 Tenant Act, the main purpose of which was to afford better protections to tenants in order to halt their increased displacement, the Legislature decided to completely nullify the no-mitigation rule espoused under Holy Properties in the residential setting. The plight to minimize tenant evictions and the resulting widespread dispossession from their homes is presently at the forefront for the City given the current affordable housing crisis. Consequently, annulment of the rule in residential leases is concomitant with the underlying purpose of the newly enacted legislation.

Section 4 of the 2019 Tenant Act amended the Real Property Law (RPL) by adding a new §227-e, which explicitly imposes upon landlords a duty to mitigate damages if a tenant vacates the premises in violation of the terms of the lease. In particular, §227-e applies to any lease or rental agreement covering premises occupied for dwelling purposes. Hence, while the statute applies across the board to all residential leases, inclusive of free market leases, it clearly does not apply to the ambit of the commercial universe, meaning that Holy Properties has only been provisionally repudiated by the 2019 Tenant Act, at least for the present.

Beyond this, the statute places the burden of proof to show that the landlord properly mitigated upon the landlord. Further, §227-e explicitly exempts any contractual lease provision in which landlord’s duty to mitigate is absolved, as void for being contrary to public policy.

Critically, the statute provides that a landlord mitigating its damages must, “in good faith and according to the landlord’s resources and abilities, take reasonable and customary actions to rent the premises at fair market value or at the rate agreed to during the term of the tenancy, whichever is lower.” Under this statutory framework, the onus rests squarely on a residential landlord to take affirmative steps to re-let the abandoned space by, inter alia, engaging professional residential real estate brokers, marketing and advertising the space.

Conclusion

The statute gives broad deference to the factfinder to determine whether the landlord acted in good faith, and took reasonable steps commensurate with its subjective “resources and abilities” in mitigating. This leaves a vast gray area in the law which will be further developed as residential landlords and tenants fight over whether a landlord aptly mitigated. More importantly, however, the landlord will need to fastidiously document all of its mitigation efforts since the statute has shifted the burden of proof of adequate mitigation efforts upon the landlord. Contrarily, the statute arms tenants, who vacate their leases before expiration, with a powerful weapon to combat against the landlord’s claims for recovery in collection cases in all instances where tenants vacate before their leases terminate. Much to their chagrin, the 2019 Tenant Act also bars landlords from charging for residential application fees, limits the fees that can be charged for background checks to $20, and extends by five days a tenant’s time within which to pay rent before the landlord may serve a default notice (see RPL 238-a).

In light of the Legislature’s penchant for progressive policy changes to the real property law for the purpose of further augmenting tenant protections, it will be interesting to see whether the no-mitigation rule is similarly voided in the commercial context through subsequent legislation.


As before, depending on what you plan on doing, we suggest consulting with a tenant attorney, not a landlord attorney or a general practitioner.
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