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best way to document you sent rent check?

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best way to document you sent rent check?

Postby enro » Thu Jan 31, 2013 1:39 pm

Hi,

We're currently in a dispute with our landlord. We've been served a 30 day notice to leave, but want to keep paying rent because we believe we have the right to stay, for various reasons.

Does anyone have any suggestions on the best way to document / retain proof that you sent in the next month's check -- considering that the landlord may not cash it.

Thanks.
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Postby TenantNet » Thu Jan 31, 2013 2:13 pm

When you say notice to leave, if it's a court document, there are times when withholding rent would be the right thing to do. That depends on a number of things. But in either case, make sure you put the money aside in the bank and do not spend it.

To document your sending the money, send it by certified mail, return receipt requested.

In a non-pay situation, that would establish a defense of "tender and refusal" if the LL sends it back, or fails to give you credit.

If you are unregulated, and you think you should be rent stab, then I would file a case with DHCR as soon as possible.
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Postby enro » Thu Jan 31, 2013 2:36 pm

Thanks TenantNet.

It's a 30 day notice to terminate from the landlord, not a court document.

So if (or when) I am sent a Petition and Notice of Petition Holdover papers, should I stop paying rent at that point?
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Postby TenantNet » Thu Jan 31, 2013 3:00 pm

That could a predicate notice, which is required prior to commencing a holdover proceeding. But those are usually for ten days when they terminate in the middle of a lease. If unregulated, if your lease is up, there's no need for a termination notice.

Do you know if you are regulated, or do you think you should be regulated?

Do you have a current lease? Is it ending soon, or recently ended? Or is the LL trying to claim you did something wrong?

If you're in the middle of the lease and the LL wants to terminate the lease for cause, if the LL accepts rent between the date of the termination notice and the commencement of the proceeding in Housing Court, that would vitiate the notice and reinstate the tenancy (forcing him to start over). This stuff gets complicated and you probably would benefit with some legal advice (we can only do so much on the forum).

And if you think there's a chance you could be regulated, I would file with DHCR as soon as possible.
Last edited by TenantNet on Thu Feb 07, 2013 4:51 am, edited 1 time in total.
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Postby enro » Thu Jan 31, 2013 3:04 pm

Got it.

The lease has expired but we think we're rent stabilized, the LL is claiming we're not.
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Postby TenantNet » Thu Jan 31, 2013 3:08 pm

If already expired, then the LL is treating you as a month-to-month tenant, and the 30 day notice would be necessary at that point.

Did you get a rent history from DHCR? A complete history going back to 1984? Are there rent registrations that just stopped? What about improvements that might have happened before you moved in? Do you have any other evidence to support a claim of RS status?
Last edited by TenantNet on Thu Feb 07, 2013 4:54 am, edited 1 time in total.
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Postby enro » Thu Jan 31, 2013 3:50 pm

Yes we did get the rent history from DHCR. The rent registration stopped a few years ago. There weren't any major improvements that we can see on it.

The LL's claim is that the legal allowed vacancy increases bumped it up out of stabilization. We've been advised by an attorney that they had to take several steps to properly deregulate, which it doesn't seem they did.
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Postby TenantNet » Thu Jan 31, 2013 4:07 pm

Generally there is a four year statute of limitations, for example, if you filed with DHCR today, they can only look back 4 years for evidence.

But the Grimm decision allows DHCR to look back beyond the four years in certain case, for example, if there has been some fraud.

As for bumping past the limit, it was $2,000, but in 2011, that was changed to $2500. So it depends on when (and if) it was "bumped up." Also, for buildings with 35 or more units, the rent increase for individual apartment improvements is now 1/60th of the cost, not 1/40th.

If the alleged improvements were bogus, that's another argument.

What did the attorney say the necessary steps were in order to properly deregulate the unit? I remember there was supposed to be a form filed, but there wasn't a consensus if this was necessary (and DHCR wasn't clear).
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Postby enro » Thu Jan 31, 2013 4:31 pm

The attorney said the necessary steps were to file with DHCR and notify the first new tenant that the apt was being deregulated.

Spoke to DHCR today; I was told that not filing with DHCR doesn't mean it is not deregulated, but that landlords are penalized when they don't file.

I was also told that a landlord would have to prove they took the necessary steps in court.

Do you know if that's the case -- For example if I refuse to leave and appear in a holdover proceedings in court, and I give my reason for refusing to leave, would the landlord have to prove it was properly deregulated once we met in court?
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Postby TenantNet » Thu Jan 31, 2013 4:48 pm

I've heard of these requirements, but to be honest, there's a lot of ambiguity as to what is really required, by DHCR and/or the courts. I've seen no cases where landlords are penalized by DHCR. I'm not even sure if DHCR has the legal right to fine or otherwise penalize landlords ... other than determining that the unit is still RS.

I hope what you heard is correct, but I'm not convinced that it is. Hopefully you heard from a real tenant lawyer and not some lawyer who hangs a shingle above the corner deli.

What I would do is (for the third time), file with DHCR as soon as possible. While the LL may (or may not) be required to prove he took certain steps in court (and some Housing Court judges just do what they like), the better argument in my opinion is to say in court that the issue is currently being considered by DHCR. I would file, in person or by cert. mail, with DHCR. Get a docket number ASAP. Be able to prove you made the filing.

DHCR is by far a tenant-friendly agency, but once in a while they do the right thing. But here, it can also buy you time and put off a holdover proceeding.

And FYI, you would likely need to make a Motion to Dismiss -- after the Holdover proceeding is commenced -- because DHCR is considering the issue.

And :) before you take all this advice, you might want to run it past the tenant attorney with whom you consulted.
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Postby enro » Thu Jan 31, 2013 7:03 pm

Yeah it does seem to be very ambiguous -- I've spoken to DHCR on the phone and was told one thing; in person one of their reps told me "off the record" something else. I don't know what's what.

I'll do the filing first thing tomorrow -- question about this line:

"And FYI, you would likely need to make a Motion to Dismiss -- after the Holdover proceeding is commenced -- because DHCR is considering the issue."

Can I make the Motion to Dismiss in Court by myself? Or is that pre-court?

Thanks.
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Postby TenantNet » Thu Jan 31, 2013 11:37 pm

That's one the court proceeding has started. You can't seek to dismiss a court case that has not yet been filed.
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Postby 10ants » Thu Feb 07, 2013 2:22 am

I was under the impression that deregulation is statutory -- an apartment is automatically deregulated when it is empty and the legal rent crosses the threshold (2000 until 2012, 2500 since).

The statute ( http://www.tenant.net/phpBB2/viewtopic.php?t=4840) doesn't specify what the penalty for failing to do so is, but the text does make clear that when the notice is due, the apartment is already exempt.

Likewise, failure to file a deregulation statement doesn't necessarily mean that the apartment is still regulated -- it just might mean that the LL is liable for the annual apartment registration fee until he files a deregulation statement.

Finally, to win a case like this, you'd have to prove that you were the first tenant post regulation -- otherwise he can simply say that he rented it for a month to someone else, that he delivered the required notices, etc.[/url]
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