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Prime Tenant retaliatory eviction against Roommate

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

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Prime Tenant retaliatory eviction against Roommate

Postby RightsProtector » Wed Mar 06, 2019 3:43 pm

Hi Guys,

I have looked around this forum for some insight on this matter but realized I must start my own topic.

Question:

1) Can a Roommate claim Retaliation for a "change of 'tenancy'" in court against a Prime Tenant for the Good Faith attempts they took to protect their Rent Stabilized Proportionality Rights? Thereby causing the eviction to be illegal?

1.1) Can a Roommate sue for retaliation damages against a Prime Tenant?

Thanks.
Last edited by RightsProtector on Thu Mar 07, 2019 6:51 pm, edited 1 time in total.
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Re: Prime Tenant retaliatory eviction against Roommate

Postby TenantNet » Wed Mar 06, 2019 7:06 pm

First, we assume you mean a roommate who rents a room from the prime tenant who is on the lease, and that the roommate is NOT on the lease. If the roommate was on the lease, then he/she would be a co-tenant and that's entirely different.

I also assume, based on where this is posted, that the prime tenant is rent stabilized.

So please answer these questions and explain what is going on.

You do not reveal what sort of court case this is, what court it is in, and who are the parties. That would be helpful, at a minimum.

Is this in Housing, Civil or Supreme Court?

Is the suit brought by the landlord, the prime tenant or the sub-tenant (roommate)? Is it a holdover, non-pay, or licensee proceeding? Or something else?

What is being sought by the petitioner: possession, by whom, against whom? Rent? Is it less than or more than half of the legal rent? Something else?

Has an answer been put in by the respondent? If so, what are the defenses or counterclaims?

Is there a written agreement between the prime-tenant and sub-tenant?

What stage of the proceeding is this in? Has there been a trial, decision? Is this an appeal or reargument?

Who is represented by an attorney?

What do you mean by "change of tenancy." Please explain the entire paragraph. What you've written makes no sense.
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Re: Prime Tenant retaliatory eviction against Roommate

Postby RightsProtector » Thu Mar 07, 2019 6:44 pm

Yes, the Roommate rents a room from the Prime Tenant (the only tenant on the lease).
The apartment is rent stabilized.
No eviction lawsuit has been started yet.

For Question 1)
History:

The Roommate found out about the legal rent of the apartment and that the Prime Tenant was overcharging Roommate disproportionate rent per NYCRR 2525.7(b)

"2525.7 Occupancy by persons other than tenant of record or tenant's immediate family

(b) The rental amount that a tenant may charge a person in occupancy pursuant to section 235-f of the Real Property Law shall not exceed such occupant's proportionate share of the legal regulated rent charged to and paid by the tenant for the subject housing accommodation.

For the purposes of this subdivision, an occupant's proportionate share shall be determined by dividing the legal regulated rent by the total number of tenants named on the lease and the total number of occupants residing in the subject housing accommodation..... [T]he charging of a rental amount to an occupant that exceeds that occupant's proportionate share shall be deemed to constitute a violation of this Code."



The Roommate made a Good Faith Attempt per RPL 223-b (1)(b) to protect his rights of proportionate pay by text messaging and speaking in person with the Prime Tenant.

" b. Actions taken in good faith, by or in behalf of the tenant, to secure or enforce any rights under the lease or rental agreement , under section two hundred thirty-five-b of this chapter, or under any other law of the state of New York, or of its governmental subdivisions, or of the United States which has as its objective the regulation of premises used for dwelling purposes or which pertains to the offense of rent gouging in the third, second or first degree.";

Less than 24 hours after Good Faith Action taken by the Roommate, and before any Rent could have even been missed or was overdue, the Prime Tenant served the Roommate with a "Notice of Termination" within 30 days.

No eviction notice has been served yet. However, the question remains that if an eviction notice is served, can the Roommate counterclaim in court that retaliatory action was taken by the Prime Tenant under to RPL 223-b(1)?

"1. No landlord of premises or units to which this section is applicable shall serve a notice to quit upon any tenant or commence any action to recover real property or summary proceeding to recover possession of real property in retaliation for: "

" b. Actions taken in good faith, by or in behalf of the tenant, to secure or enforce any rights under the lease or rental agreement , under section two hundred thirty-five-b of this chapter, or under any other law of the state of New York, or of its governmental subdivisions, or of the United States which has as its objective the regulation of premises used for dwelling purposes or which pertains to the offense of rent gouging in the third, second or first degree.";

And if a court deems the "Notice of Termination" was retaliatory and therefore illegal, will that void the eviction lawsuit?


For Question 1.1)

Now, can a Roommate counter sue if an eviction lawsuit is started, or sue for retaliatory damages under RPL 223-b(3)

" 3. A landlord shall be subject to a civil action for damages and other appropriate relief, including injunctive and other equitable remedies, as may be determined by a court of competent jurisdiction in any case in which the landlord has violated the provisions of this section. "

Thank you.

Citations:
http://tenant.net/Rent_Laws/rsc/rsc2525.html
https://codes.findlaw.com/ny/real-prope ... 223-b.html

*bold text, for law reference.
*underline text, for emphasis.
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Re: Prime Tenant retaliatory eviction against Roommate

Postby TenantNet » Mon Mar 11, 2019 11:01 pm

I'll assume you are the roommate. So there's been no DHCR or court case filed (yet).

In plain English, you found out the legal rent and the prime tenant (assuming you are the roommate) is charging more than half (not including utilities). Yes, that's illegal (and discussed many times on the forum).

Yes, it sounds as if the actions of the tenant might have been in retaliation.

BTW, even if you leave, the tenant could be liable to you for the overcharge and maybe even treble damages. If they refund to you the overcharge right away, most likely the damages would not be applied.

The tenant cannot lock you out (call the police if that happens). And carry with you proof that you live there (roommate agreement, utility bills in your name, etc)

To legally get you out, the prime tenant would have to commence a proceeding in Housing Court just as if he/she were the landlord.

I believe that if taken to court, then yes, you should be able to raise a retaliation defense. But to be honest, I haven't seen this happen too many times. You might do better to file a complaint with DHCR about the overcharge. Then you would have it on paper.

As for seeking retaliatory damages, I don't know the answer to that. Understand that in Housing Court, the case load is so heavy judges just want to get a case off the docket, so they might ignore that. If you really want to press that, a) speak to a tenant attorney, and b) consider filing in Civil or Supreme Court.
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Re: Prime Tenant retaliatory eviction against Roommate

Postby RightsProtector » Tue Mar 12, 2019 2:38 pm

TenantNet wrote:In plain English, you found out the legal rent and the prime tenant (assuming you are the roommate) is charging more than half (not including utilities). Yes, that's illegal (and discussed many times on the forum).


This is where it gets unique, I was looking into a specific situation where the Prime Tenant (the only person on the lease) was overcharging disproportionate rent and not necessarily overcharging more than half the legal rent. In a case where there are more occupants than just the Prime Tenant and one other Roommate.

For example, the apartment is a 4 bedroom apartment originally with 4 Occupants but now changed to 6 total Occupants (the Prime Tenant and another Occupant moved in their girlfriends) but instead of decreasing the rent per each Occupant to 1/6 the legal rent - a proportionate share - the Prime Tenant is still charging 1/4 the legal rent to the original Occupants. A violation of 2525.7 mentioned above.

For calculated specifics, the stabilized apartment legal rent is $3000 a month, and the Prime Tenant was charging $3000 / 4 = $750 a month to each room. Later, two new Occupants moved in and while he should only charge each Occupant $3000 / 6 = $500 a month according to 2525.7, he wouldn't accept that and still charged $750 a month to the Roommate in question.

The other two occupants girlfriends are living for free, or they are paying their boyfriends rent, who then are profiteering (taking in more rent than the aggregate legal sum) off of the rent stabilized apartment, probably an incurable ground for eviction. Either way, it's an overcharge of $250 a month to the Roommate. However, it's not more than half the legal rent.

Is it better for the Roommate to file a DHCR complaint regarding this matter and for treble damages or to go straight to civil lawsuit? Seeing as how it's a bit more complex and DHCR might not be able to handle it?


RightsProtector wrote:I believe that if taken to court, then yes, you should be able to raise a retaliation defense. But to be honest, I haven't seen this happen too many times. You might do better to file a complaint with DHCR about the overcharge. Then you would have it on paper.


To have the DHCR complaint on paper to further prove retaliation? Even after the notice of termination was served?

RightsProtector wrote:As for seeking retaliatory damages, I don't know the answer to that. Understand that in Housing Court, the case load is so heavy judges just want to get a case off the docket, so they might ignore that. If you really want to press that, a) speak to a tenant attorney, and b) consider filing in Civil or Supreme Court.


I see, so can the Roommate seek retaliatory damages at any time in Civil Court? Even after a judge ruled on a eviction case?

Thank you.

P.S Should I move this overcharge discussion to another topic?
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