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Use and Occupancy still being invoiced after tenant prevails

NYC Rent Regulation: Rent Control/Rent Stabilized, DHCR Practice/Procedures

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Use and Occupancy still being invoiced after tenant prevails

Postby hellskitchener » Mon Nov 07, 2016 10:29 pm

Here's a question for the group.

A neighbor in my building (a long-time rent stabilized tenant) prevailed during a protracted holdover case (a false nuisance case). He represented himself, and it took 7 months of nonsense, but he prevailed, thank goodness.

During the case, the landlord insisted upon "Use and Occupancy," which is typical, and was established with a stipulation.

The neighbor just came to me with a question. The case has been over for almost a year, but he only JUST noticed that the Landlord was still charging him "Use and Occupancy" not rent. His new lease began right after his case was over.

The question: Since the landlord is still charging him "Use and Occupancy", and he is paying every month, is the landlord in violation of the lease, and the terms of the tenancy because the tenant is being treated as a month-to-month tenant?

Shouldn't the landlord have resumed charging the tenant "Rent" after the case was over.

I know they are just words, but if "Use and Occupancy" is legally significant when a case is happening, then isn't it legally significant if a landlord is still charging it after a case is long over.

Is the tenant sitting on an enormous credit, since he is illegally being treated as a month-to-month tenant?

Any thoughts? I know he should check with a lawyer, but we are curious if anybody has ever heard of this happening. The legal questions it raises aren't typical with rent regulated tenants.

Thanks for your thoughts.
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Re: Use and Occupancy still being invoiced after tenant prev

Postby TenantNet » Tue Nov 08, 2016 2:31 am

I would think if the question were raised in any proceeding, the tenant would retain all his RS rights no matter what the description of the rent listed on his rent bill.

There are times that "use and occupancy" can be at a higher unregulated rent and not a RS rent if the tenant's unit status is in question. But that would hold until the case is over.

LLs often resort to such tactics (they will claim it's just a mistake) just to get under a tenant's skin. And it often works.

You don't say how the case ended, but if it was settled, it probably should have had a line about the resumption of rent being called rent.

In this instance, the tenant should contact the LL asking them to change the bill. If that doesn't work, the tenant can always withhold rent, but that should be done with caution.
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Re: Use and Occupancy still being invoiced after tenant prev

Postby hellskitchener » Tue Nov 08, 2016 2:51 am

That's mostly what I was thinking. except that half of this tenant's lease was spent being treated as a month-to-month. The case ended with a stipulation that favored the tenant, and based on "U&O being continued, it might be seen as a violation of both the lease AND the stipulation. 'U&O" seems to cary legal weight and actually mean something during a case. Why shouldn't it carry weight when the case is over? I can't seem to find any cases that deal with this. Thanks for your thoughts.
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Re: Use and Occupancy still being invoiced after tenant prev

Postby TenantNet » Tue Nov 08, 2016 2:56 am

From what I know, U&O is a legal fiction, or term of art, used to allow a LL to collect what is really rent while maintaining that the landlord/tenant relationship has been severed in the context of a holdover proceeding. You post wasn't clear ... did you mean that the stip allowed for the "U&O to be continued?" That makes no sense to me.
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Re: Use and Occupancy still being invoiced after tenant prev

Postby hellskitchener » Tue Nov 08, 2016 3:13 am

No.. it made no specific reference to the U&O, only that both parties withdraw their claims and counterclaims and the case was over... the tenant acted pro se, so no legal fees were awarded. I don't have it in front of me. Assuming U&O is more than a legal fiction, the question is, does the failure by the LL to restore the tenant to full status (which is what it looks like on paper) violate the stipulation which was filed with the court, naturally. This particular issue is a new one for me. Again, thanks.
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Re: Use and Occupancy still being invoiced after tenant prev

Postby TenantNet » Tue Nov 08, 2016 4:32 am

Did it say the case was "discontinued?" I'm assuming what the LL is now doing is just listing "U&O" on a monthly rent bill, is that correct?

I don't think think it's that big a deal, but it could allow the LL to make a spurious claim about the status of the tenancy. I don't think a court would buy it, but I've seen stranger things occur.

Again, have the tenant send a letter to the LL asking the bill be corrected. (make copies and send certified or certificate of mailing).
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