Advice on rent withholding

[aguy189]

Here is the situation with my gf:
Market rate studio apartment UES, 1800 plus utilities per month with first month, last month, and 1 month security paid up-front. Lease ends May 31st.

The gas oven with electric starter did not work from the start, but it just didn't "not work." It did weird things, so she tried to figure out what the issue was. It actually works for about 10 minutes and then shuts off. It also is not grounded. Finally, around September 1st, she told them it did not work, and asked that they fix it. Someone came out fairly promptly when she was not home and determined that it worked fine (because he left in the first 10 minutes). Even though she told them the problem doesn't start right away. Then the delaying, coming out more times and not fixing it, being rude on the phone (e.g., telling her she's an idiot and doesn't know how to use an oven), etc. She asked them to come when she had the day off (once every two weeks) because something was clearly being lost in translation from the manager to the maintenance people, but they never did.

Finally, on December 8th she wrote a letter (and faxed the same) saying that it has been 3 months and she was not going to pay rent until they fixed the oven. They didn't seem to care, and continued delaying and coming back but not fixing anything. Finally, around mid Feb. they fixed it. She paid a pro-rated rent for Feb. and thus, withheld about 2.5 months in rent. They called to yell at her and be rude some more. (Which is not relevant to legal recourse, but it's just amazing how many people in NYC can't manage to conduct business in a civilized manner). Anyway, they told her that they're keeping her last months rent and security deposit and that she owes them a half month of rent.

She told them she wants them to sue her because she thinks they were rude and don't deserve 5.5 months of rent. They offered to let the matter go with just the 1/2 month of rent, but want it in writing.

Thoughts?
Does an ungrounded gas oven with regulator and electric starter problems render the whole apartment uninhabitable, or just a fair value difference of the apartment vs. an apartment with no oven?
Does she have a claim to 2.5 months of rent, 5.5 months of rent, 4.5 to 5 months of rent (i.e. 5.5 - a reasonable amount of time to fix the oven) [either in full or at the pro-rated amount from the first question]?

etc?


-John

[TenantNet]

Lack of heat and hot water make a place uninhabitable. A broken oven does not. In all honesty, if the LL is willing to waive $900 in rent for their delay and rudeness, that might be a good deal.

However, if she's planning to stay (if they let her), I would look into why the place isn't rent regulated.

If she's planning on leaving, and the LL has said they will not return the deposit, she might consider withholding the last month's rent to recover the deposit (or April's rent as well if they also have the last month's rent upfront). Some will say that's not legal, but it's also not "legal" for the LL to withhold returning a deposit as retaliation.

In the end things tend to wash out as to who owes what, but does she want to go to court over this? I would find a fair solution to move on (but also get it in writing that they will not withhold the deposit absent specific evidence of physical damages to the premises).

[aguy189]

Well the risk of dying seems far more uninhabitable than needing a sweater, but it is what it is.

They've already said they're going to apply her security deposit to the deficit, which is how they arrive at the 1/2 month figure. She's paid up to the end of the lease except for 1/2 month, assuming the security deposit is withheld, as they said they were going to. So there's nothing she can do (e.g., withhold anything further) except sue for rent/deposit.

She's refusing to resign and they're refusing to renew, so at least they can agree on that much. She'd be happy to go to court if she has a case. I'm sure we'll get a legal consult, but sounds like you think she has no case (beyond maybe 900).

Thanks.

[TenantNet]

When a LL takes a tenant to housing court for non-payment, and the tenant interposes a warranty of habitability defense and counterclaim, and if that is upheld, then there is often a formula that judges seem to use to determine what percentage of the rent be awarded to the tenant. I've not seen the formula in print, but lawyers seem to know about it. And it provides some sort of consistent rationale.

It can range from 100% to nothing depending on the severity of the situation. In your case, $900 as a percentage of 12 month's rent would be close to a 5% abatement. She might get more, but I wouldn't count on it.

Of course that depends on the case. That the LL did respond earlier -- even if it didn't correct the issue -- goes to the LL being responsive. I understand the LL can be rude, but a judge might not see that.

Plus the time and cost for a court case is more than you realize. If you can negotiate a settlement for $900, in writing, I honestly don't think that's that horrible.

[aguy189]

$1800 for a studio on the Upper East Side, Landlord offers $3000 not to renew. This certainly sounds like a buy-out to get the apartment out of Rent Stabilization. Otherwise it just doesn't make sense.

Did you ever check with DHCR to make sure the apartment isn't regulated?

I did not. I'm pretty sure it isn't, as the building is fairly new.

I couldn't tell if you were implying that $1,800 is a good deal? $1,800 for a studio on 1st ave and 81st st. seems pretty market, no? (or at least for a year ago). (No door man, 8 floors, elevator, 4th floor unit facing a church parking lot but good light).

[aguy189]

As the unit is not regulated (per your post), then there was no chance for your GF to invoke any tenant protection laws. There are essentially none (for that unit) to invoke.

I will again have to take your word for it (and really do). My knowledge is indirect and antidotal at best. A friend of my cousin's has a 2-family next to their grocery store in bedherst. Their tenant was a pain in the arse, and then decided to stop paying rent one day. She said she got fired and didn't have any money. She refused to move, and every eviction hearing was continued by the judge when she didn't show up (which kind of feels like the opposite of a default judgment). IDK, maybe his lawyer is an idiot. She eventually moved after like 8 months of delaying. Never paid rent though. Almost had to get another mortgage on the grocery store to start covering the multi-family house payments since there was no rental income.

[Cranky Tenant]

I couldn't tell if you were implying that $1,800 is a good deal? $1,800 for a studio on 1st ave and 81st st. seems pretty market, no? (or at least for a year ago). (No door man, 8 floors, elevator, 4th floor unit facing a church parking lot but good light).

No. What I was saying is that $1800 a month is still within the range of rent stabilization. Destabilized studio apartments in the walk-up tenement where I live go for considerably more.

Apartments can be deregulated if they become vacant and the rent rises above $2000 per month. If you decide to vacate in the next few months the landlord will become entitled to the usual 20% vacancy increase at which point the apartment will be destabilized, if it isn't already. If that's the case I'd say it's the landlord who got quite a deal.

EDIT: Of course it's possible the apartment was already deregulated and $1800/month was the most the landlord could get. But then you'll never know if you don't check with DHCR.

[TenantNet]

The old "friend of my cousin" legal advice, eh?

Yes, there are always the two-family buildings in the outer boroughs that are dredged up for sympathy. And some might even be legitimate. But understand that in NYC most people have no options and must rent. It's not like somewhere in the middle of the country where you can find cheaper digs further outside of town, and even purchase of buildings is cheap. In Detroit, for example, you can actually purchase a house, albeit not in great shape, for as low as $10,000. And you can find decent houses for purchase for around $100,000.

Not in NYC. And remember, approximately 78% of the rental apartments are all owned by 12% of the owners, the big guys. So the small mom-and-pop landlords, while they do exist, are not that common, at least in Manhattan.

And no one can say why that particular tenant's case was delayed. You only heard one side of the story.