Big Management Company - Need advice

[Downtowner]

This is kind of convoluted and covers several issues...

I've been having some difficulties with my landlord. I moved into my current apartment in lower Manhattan and signed a two year lease to take advantage of the housing grants being offered by the government, making a very good deal on a nice apartment a great deal.

The landlord for this building is a Management Company owned by the developer of the building.

When I moved in this past April, I inquired as to where to send the rent. I was told to wait for a "rent bill" and use the envelope that would come with it. The rent bill was misaddressed by the management company and as a result I did not receive it until much later. I made an assumption I shouldn't have made, and thought that since I had to pay an extra month's rent up front that it was rent for May and didn't think much of it, using the money I would have paid towards May's rent to buy badly needed furniture, which thusly put me one month behind.

I've been negotiating with the management company, and a man who says he is a vice president of the company said in a telephone conversation (after he called and harrassed my partner for 10 minutes) he would agree to any repayment schedule I proposed, and asked me to fax it to him at my earliest convenience. I faxed to him a schedule agreeing to pay 1.5 X rent per month split up into four payments over the course of two months to bring my account current, leaving me with just enough money to live on and pay bills, and I set up automatic bill payment with my bank to make sure the money went out.

Also during this telephone conversation he informed me they had not received my previous rent payment. I immediately contacted my bank to find out if the check had been cashed, it had not. My bank said it had been a long time, the check probably got lost in the mail, and they would be willing to stop payment and reissue the check. I called the representative with whom I had been working, who instructed me to have the bank stop payment on the check and reissue a new one. My bank called to verify they had not received the check. They were told by another representative at to wait a few days before proceeding. When the check still hadn't cleared five days later, my bank stopped payment on the old check and sent a new one via priority mail. During this time, the management company recieved the first check and attempted to cash it, because a stop payment order had been issued against the check, it bounced. The second check arrived shortly thereafter and it has cleared. The managment company is now demanding a $50 fee for a returned check.

Ten days after my conversation with the management company rep, I was served by a process server with a document demanding full payment within 12 days, otherwise I must move. I also received a copy via regular and certified mail. I've been visitig this site long enough to know that's improper, so I simply wrote a letter stating that I thought we had an agreement, and attached the schedule I had faxed previously. I also sent a copy via certified mail return receipt requested. I've not yet received the return receipt, but I know they received the message because I received a reply via certified mail, return receipt requested, stating they never received the schedule I faxed, that what I sent was unacceptable, and again demanding full payment (for the wrong amount) and insisting I owed the $50 returned check fee, with a veiled threat of eviction.

In April when I moved in, I had a fairly large (60 lb) dog. My partner moved out and took the dog with him this past week. The day after my partner moved out I was presented with a letter by the doorman, and request to sign a form stating I received the letter with its attchments. The letter was a demand to sign a "Pet Rider" to my lease, and notification they were going to add a $500 pet fee to my rent bill.

There are several questions I have here:

Is the management company entitled to the $50 returned check fee, even though they instructed both me and my bank to stop payment on the check?

Is their demand for a $500 "pet fee" covered under the pet law? My lease says that they have to give me ten days to correct a breach before initiating action, does this also apply?

Can their tactics be considered harrassment?

I've been saving every scrap of paper they send me, and I'm considering forcing them to take me to housing court. If I do, what are the risks? What can I gain?

[Cranky Tenant]

Generally speaking, the LL is only entitled to fees that are included in the lease, or any fees awarded to him in court. If he decides to take you to court, most likely, the Management Company will have to demonstrate your returned check actually cost them $50 before the court would even consider awarding them this amount.

Pretty much the same thing goes for the Pet Deposit. If they wanted an additional $500 deposit, which would allow you to have a dog, that should have been included in the lease, or on a rider sor you to sign when you rented the apartment. The fact that the dog is no longer there would seem to make it a non-issue.

[Downtowner]

The $50 charge for returned checks is in the lease, however I would think the fact the stop payment order was done at their request would be an extenuating circumstance.

I'm sure the pet fee (it's not a deposit, it's non-refundable) is a non-issue at this point, however I'm thinking that they are violating a clause in the lease that requires them to give me ten days to cure the breach before trying to enforce it, and even if they did, the three month limit imposed by the pet law would apply here.

My concern is that they will not remove these fees from my rent bill, and through accounting say that I paid the fees, but not the rent, setting up a context to add more late fees and begin a holdover proceeding to evict me for being consistently late with the rent. I don't want it to get to that point, I want the frivolous charges removed. I have asked them to remove the charges, but I've not received a reply as of yet.

At any rate, I think I'll contact a lawyer in the morning and find out if I should start putting my rent money into an escrow account and make them take me to court.

[Cranky Tenant]

In all fairness, the management company should probably be covering your fees, since they thought they had lost the check. But then whoever accused these companies of fairness?

I'm not a lawyer but I wouldn't recommending wthholding rent at this point. From what I understand, they can only bring a non-payment suit for rent - not additional fees

Why not simply send them a certified letter explaining the dog is gone, and returned check was their error. If they decide to pursue this anyway, you'llbe able to demonstrate you've made an effort to resolve this.

[Downtowner]

I have already sent certified letters about the fees, remiding them that the stop payment order on the check was at their request (two times), and that wasn't going to pay the pet fee because of the time limit imposed by the pet law, and the fact the pet is no longer in my apartment.

I haven't received a reply to my most recent letter so I'm holding off doing anything until I hear from them. If they continue with threats or refuse to back out the additional charges, I'll go talk to a lawyer.

[Downtowner]

I just received my latest rent bill. The $500 "pet fee" is still on the bill, as is the $50 returned check fee. I've received no reply to my latest letter to them, and it appears I have no other recourse here other than to talk to an attorney since it now seems they are engaging in passive aggression.

[Cranky Tenant]

Yes it's annoying but I would suggest ignoring it until they actually try to collect the money. You really don't need a lawyer unless they start legal action.

<small>[ September 14, 2002, 05:22 AM: Message edited by: Cranky Tenant ]</small>

[Downtowner]

I went ahead and spoke with an attorney. I told her my story and showed her copies of the letters and notices I've exchanged with the management company.

She said ignoring it was probably the worst thing I could do. What she suggested was to write a conciliatory letter to the management company stating that I like the apartment and wish to renew my lease when it expires (which is true, aside from the management company, I love this place), ask them to respond in writing regarding the fees, and send it to them via certified mail.

I waited until I verified they cashed the last check, which gets me current through September, and today I sent the letter, stating that I expected a response by 10/4.

If they don't agree to remove the charges or don't respond, my attorney advised me to write another letter telling them I am withholding rent until they remove the charges. She told me that if it goes to court, there is no doubt it would go in my favor since the management company is clearly and willfully violating the lease, so if they were smart they would back down. Of course given my experiences with them so far, I have no doubt they will try to take it to court.

I'll update as developments occur.

As a side note, the fee I paid my attorney for the advice was money well spent just to know for sure how I should proceed. The best thing is she told me that I won't need her if it does go to court.

[Downtowner]

Well, the deadline I gave the management company to resolve the issue has passed, and no reply. Not surprising, as I was expecting that. Today (though technically yesterday) I mailed the letter telling them because of their continued breach of the lease, I'm withholding rent effective immediately. I fully expect an angry response and more threats and intimidation.

Of course, they could surprise me and tell me that they are backing out the fees, but given the history so far, I doubt very seriously they will do that.

Stay tuned..

[Cranky Tenant]

Personally, I don't think threatehing to withhold your rent until the management company adjusts your rent bill is what your lawyer had in mind when she suggested a "conciliatory letter"

If you had simply sent an letter asking for an explanation, you could demonstrate an effort to resolve this discrepance.

Withholding rent is only going to escelate what sounds like a sour relationship and give the LL an incentive to take this to court. I would also beware of a lawyer who isn't ready to back up her advice in court.

<small>[ October 06, 2002, 03:00 AM: Message edited by: Cranky Tenant ]</small>

[Downtowner]

Actually, I am doing exactly what she told me to do.

Her exact instructions to me were to wait until the check for the last payment bringing my account current through September cleared (my bank sent it the day I went to see her, and it cleared six business days later), write the conciliatory letter specifically stating now that I've brought my account current in regards to rent and late fees, to please remove the pet fee and the returned check fee from my account and to confirm they have done so in writing. She said normally if they rebuff my request, one more letter threatening to withhold rent should be sent before actually withholding rent. However in my case that probably wouldn't be a good idea because they may take my October rent payment and mis-apply $500 of it towards the "pet fee" setting up a circumstance where they could continually charge late fees and bring a holdover proceeding against me for being chronically late with the rent. In fact, they have done exactly that with the returned check fee, applying $50 of my last payment towards that fee and claiming I still owe a late fee for September.

She was very clear that I should not send them any more money beyond what was needed to bring my account current through September as promised in the payment schedule I sent. She stated in no uncertain terms that I would prevail in court if it got that far, stating that the case was very simple. She was also very clear that I should not let this drag out.

[Downtowner]

Cranky, your point about an attorney who isn't willing to stand behind his or her advice in court is valid, and I acknowledge you for bringing it up. The choice of legal counsel is not something that should be taken lightly. Rest assured I did my homework prior to making my final choice regarding whom to employ as my legal counsel, and I am confident in the soundness of the advice and coaching she has provided.

At the risk of sounding egotistical, I am very confident in my research, preparation, and debating skills. I choose my battles very carefully, and I wouldn't push this without representation if I had the slightest doubt about my chances of prevailing. My attorney said she is willing to represent me in court, but that it simply was not necessary. I am free of course to retain her should I feel the need.

The simple fact of the matter is that I have upheld my end of the agreement and cured my breach of the lease in a fair and reasonable manner as promised. The LL by virtue of accepting the payments agreed to the terms under which I paid even though they said those terms were unacceptable. That means at this stage, from a legal standpoint I am 100% in the right, and the LL is 100% in the wrong. Had I refused to pay or continued paying one month behind, I wouldn't be in the solid position of strength where I now find myself.

The LL is not entitled to any charges or fees not stipulated in the lease and fairness dictates I do not owe the returned check fee since the LL was the one who told me to stop payment on the check. Simple common sense says it's an open and shut case, and I have no reason to believe the judge would see it any differently.

I've accepted the fact that my relationship with the LL will never be a friendly one and that at this point it's going to get really ugly. I can prove I've made reasonable attempts to improve my relationship with the LL by bringing myself back into compliance with the enforcable terms of the lease. I'm not the kind of person who will allow the LL to have their way or trample on my rights as a tenant just to preseve the peace. I have a bit more self respect than that. The LL has been very aggressive in their dealings with me, and I have no problems being just as aggressive.

At this stage, I am no longer seeking advice. I am reporting the events as they happen so that it may benefit others who find themselves in a similar situation and possibly serve as a warning to LLs who operate in a similar manner to mine.

No offense to you Cranky, but I'll take the professional advice of my attorney with whom I've met and discussed my situation face to face over advice provided anonymously on an Internet message board. Although highly unlikely, the possibility exists you could be a LL or an attorney who represents LLs. I've been around the net long enough to know that not everyone is what they claim to be.

[Downtowner]

FairSpectator,

You didn't get it straight. You should go back read what I've posted carefully and not skim, for if you had done so you would know the following salient points.

In a nutshell:

1. There was some confusion over May's rent. I've brought my account current through September as I promised my LL I would. Because the LL accepted payment as tendered, they cannot claim my inadvertant breach has not been settled. I'll also point out that it was a clerical error on their part at the root of the problem, making them partially responsible.

2. They've known about the pet since before I moved in. I've been completely honest with them about that from the beginning. Besides, while it may be easy to hide the comings and goings of say a Yorkshire Terrier, it's a bit difficult to camouflage a 65lb Chow / Golden Retriever mix, especially one that likes to bark at noises in the hallway.

3. Under the pet law, they've waived their right to enforce the no pet clause. Their employees have known about the dog since April, and they waited until August to demand my signature on the pet rider and the pet fee. Had they presented the pet rider at lease signing like they did the terrace rider attached to my lease, or within three months of their employees knowing I had the pet, I would have signed it and paid the pet fee at lease signing.

4. The pet law notwithstanding, their only legal recourse is to apply the process described in the lease requiring them to give me 10 days to cure, and if I do not comply, initiate a holdover proceeding. They are not allowed to charge fees not stipulated in the lease. All my lease says is that I must have their written permission to have the pet. There is no mention of any fee that must be paid to obtain said permission.

5. The dog is no longer here. It left with my ex-partner the day before they presented the letter demanding the pet fee. It was a non-issue before they made their demand.

6. It was at the LL's direction that My bank processed the stop payment order on a bank issued check that was apparently lost in the mail. My bank would never have processed the stop payment order on a bank issued check without notifying the payee and without the payee authorizing it. They issued a new check the same day they stopped payment on the original check. I have proof of this in my documents.

7. I am not paying my lawyer to represent me in court. My legal expenses to date for this have been less than $100, not counting postage.

8. Even if I were to spend $2000 to retain my lawyer for court, I would still come out ahead in the end. There is some cause for concern that if I ignore my LL's demands for these fees it can cost me way more than $2000 - Like $50 per month in late fees for the next 18 months and my entire deposit, an amount well in excess of $2000.

[Mr Gray]

Everything sounds good to me except this...

The $50 charge for returned checks is in the lease...

If the wording on it is like most riders I see all the time...usually it says something like...Tenant agrees to pay LandLord $50 for each rent check, which is deposited and returned unpaid for ANY reason.

That would mean even if it was their mistake or told you to do it on purpose.

A stupid reason or the LL being in the wrong reason is still ANY.