[NYtenants-online] Legal Guide for Tenants Affected by WTC Disaster (part 2)

[Tenant]

Legal Information and Resource Guide For Owners and Tenants
Affected By The World Trade Center Disaster
PART 2
For part 1 go to 
http://tenant.net/pipermail/nytenants-online/2001-November/000111.html

ACCESS TO APARTMENTS

ACCESS TO OBTAIN ITEMS

If you are missing loved ones as a result of the World Trade Center 
disaster, and want to get into the apartment to obtain some personal items, 
or items for DNA testing or a Will, you may have contacted the owner and 
requested permission to enter the apartment. An owner may have been 
approached for access by a friend or family member of someone missing or 
deceased and declined to allow access, believing that it could expose him 
or her to liability. Without a court order, an owner is not legally 
obligated to give a family member, or friend or any other individual who is 
not a named tenant, access to an apartment. The Surrogate's Court and the 
Supreme Court can issue an order permitting limited supervised access, in 
order to obtain certain items.

The Surrogate's Court can issue an "Apartment Search Order." This Order can 
be obtained the same day it is applied for, and will permit search and 
removal of a Last Will and Testament, insurance policies and burial 
instructions. The Apartment Search Order will not allow access for search 
or removal of any other items, including for identification or DNA 
purposes. To obtain an Apartment Search Order from the Surrogate's Court, 
you will need to bring, the death certificate, which can be obtained at 
Pier 94, and proof that you are the next- of-kin, such as the spouse, 
father, mother, sister, brother, niece, or nephew of the person who died, 
or that you are the named executor of the Will.

If you require access to secure DNA samples or another purpose, you can 
petition the Surrogate's Court for Letters of Administration (if the 
decedent did not have a will) or Letters Testamentary (if the decedent had 
a will). The forms you will need to fill out are available in the 
Surrogate's Court, and you will need to bring with you the death 
certificate and proof that you are next-of-kin (and the Will, in the case 
of Letters Testamentary).

The Surrogate's Court has waived the fee for these applications for victims 
of the September 11, 2001 disaster and their families, and have implemented 
procedures to issue the necessary documents on an expedited basis.

You should go to the Surrogate's Court, in the County where the person 
lived immediately before his or her death. There is a Surrogate's Court in 
every County in New York City, and their addresses and telephone numbers 
are as follows:

Surrogate's Court      Surrogate's Court       Surrogate's Court
Bronx County           Kings County            New York County
851 Grand Concourse    2 Johnson Street        31 Chambers Street
Bronx, NY 10451        Brooklyn, NY 11201      New York, NY 10007
(718) 590-3611         (718) 643-5262          (212) 374-8233

Surrogate's Court      Surrogate's Court
Queens County          Richmond County
88-11 Sutphin Blvd.    County Courthouse, St. George
Jamaica, NY 11435      Staten Island, NY 10301
(718) 520-3132         (718) 390-5400

ACCESS TO THE APARTMENT FOR A LOCKED-OUT ROOMMATE

You may be a roommate who has been out of possession of an apartment where 
you were living before the events of September 11, 2001. If you are not 
currently living in the unit, it may not be possible for you to regain 
possession. A person who does not have a right to possession and who has 
been locked out of an apartment does not have a right to get back in. 
Because a roommate is usually a "licensee" who does not have a separate 
right to possession of an apartment, under the law as it stands, a roommate 
might not be able to regain possession.

Considering the extreme circumstances suffered by occupants of units in the 
vicinity of the World Trade Center, it is always possible that the law will 
be applied in a way that preserves a roommate's occupancy, at least for a 
short term. However, roommates not in possession should realize that 
generally they can be prevented from entering the apartment, since they 
have no independent right to continued occupancy. Nevertheless, it is still 
possible for such an individual to bring an "alleged illegal lockout" 
proceeding in Housing Court to, at a minimum, be allowed in to retrieve 
belongings. If you have been locked out by a representative of your 
deceased roommate's estate (who is now entitled to possession of the 
apartment for the remainder of the term left on the lease), and you wish to 
bring an illegal lockout proceeding, you must bring the proceeding against 
the estate of the deceased tenant. If the owner of the apartment has locked 
you out, in order to bring an illegal lockout proceeding, you must bring 
the proceeding against both the owner and the tenant's estate. For more 
information on how to bring an illegal lockout proceeding, see the 
"Tenant's Guide to the New York City Housing Court," available free from 
any Civil Court Resource Center or Clerk's office, or speak to a Civil 
Court Housing Court Counselor. If you believe that you have a right to 
continued possession, see the subheading in this guide on Roommates in the 
section entitled, Continued Occupancy of the Apartment When the Named 
Tenant has Died.

ACCESS FOR OWNER TO INSPECT AND REPAIR

If you are an owner you may want to enter a unit to inspect what if any 
damage it has sustained as a result of the September 11, 2001 tragedy, and 
begin repairs if needed. In general, landlords have the right to enter a 
rental unit for purposes of making repairs and improvements and to inspect 
the unit or show it to a prospective purchaser.

The law requires that tenants must permit the owner to enter or make 
repairs or improvements required by law or to inspect the premises to 
determine compliance with the law. The owner should contact the tenant to 
provide reasonable notice of his or her intention to inspect. The notice 
should state the purpose of the inspection and/or the nature of the repair, 
and should be a minimum of 24 hours notice for inspection and one week for 
repair. The notice should be in writing. If it is not unsafe, it may be 
wise to have the tenant or a member of the tenant's family accompany the 
owner on his or her inspection, this way the tenant's concerns can be 
stated and an owner may avoid future liability in the event something is 
broken or missing.

If the owner is prohibited from entering a building or space by the 
authorities, the owner will not be permitted to enter the space, even with 
the tenant's permission.

In the event the tenant is missing or otherwise unavailable, or if the 
tenant refuses access, the owner will have to bring an action in court 
against the tenant. The owner may commence a holdover against the tenant in 
the Civil Court or the Housing Part. The owner must comply with lease 
provisions and governmental laws and regulations regarding notices prior to 
commencing the holdover. A summary proceeding holdover may take time. An 
owner may also consider commencing a case in Supreme Court for an 
injunction which may be quicker, but more expensive. In the event the 
condition in the apartment is an emergency, such as a gas leak, or fire, 
the local police or fire department should be contacted. Absent an 
immediate emergency which can not await authorities, it is improvident for 
an owner to enter a unit to make repairs without the tenant's permission. 
An attorney should be consulted in the event access is a problem.

BREAKING A LEASE AND OTHER LEASE ISSUES

As a result of the September 11, 2001 tragedy, many New York City property 
owners and tenants are seeking information about their legal rights and 
remedies. You may be an owner who has been approached by your tenant about 
breaking the lease and you want to know if you can seek the remainder of 
the rent left on the lease term. There are any number of reasons why a 
tenant may wish to break his or her lease prior to the end of the lease as 
a result of the World Trade Center disaster. You might be a tenant living 
near "Ground Zero" who wants to move because it is too emotional to remain 
there, or because of excessive noise or poor air quality, or because access 
to your home has been restricted. You may be a tenant with a business that 
has been effected by the World Trade Center crisis and you seek to 
relocate. You may be a tenant who can no longer afford the rent on your 
apartment because you have lost a roommate, you have lost the family bread 
winner, or you have lost your job as a result of the September 11, 2001 
attacks. You may wish to move because your office has relocated and your 
apartment is no longer convenient to your job. Whatever the reason, the 
information below may explain your rights and remedies.

TENANTS

Whether you are a commercial tenant or a residential tenant, or even a 
subtenant, you cannot be forced to live in a place where you do not want to 
live, or work in a place where you do not want to conduct business. 
However, most residential leases and some commercial leases have clauses 
stating that if you move out before the lease expires, you will be 
responsible to pay the owner monthly rent as it becomes due until the lease 
term ends. If your lease has such a provision, and you move out of the 
premises before the lease ends, you may be required to pay all or some of 
the rent to the owner until the end of the lease term, even though you are 
no longer living or working there. Some leases, particularly commercial 
leases, may have clauses requiring the tenant to pay a certain sum of money 
as a penalty for breaking the lease. Other leases have clauses permitting a 
tenant to leave before the term ends if the tenant gives the owner proper 
notice. For example, a lease may allow the tenant to move out early upon 60 
days written notice to the owner. If you properly comply with the notice 
requirements, you will not have to pay any penalty for breaking your lease. 
Since a tenant's rights and remedies depend upon the language of your 
lease, you may want to bring your lease to a lawyer to review.

If you do not have a clause in your lease permitting you to leave before 
the expiration of the lease term, and the owner will not agree to allow you 
to break your lease early, you can start a "declaratory judgment" action in 
Supreme Court. The owner can also choose to start a case in Supreme Court 
seeking an adjudication of the parties' rights. In a declaratory judgment 
action, a judge will decide whether you are entitled to break the lease and 
what you may be responsible to pay to the owner. There may be legally valid 
reasons for a tenant to move before the lease expires without penalty. 
However, generally speaking, emotional distress, inability to pay the rent, 
inconvenience, and loss of business, are not legally valid reasons.

If you move out without a legally valid reason before the lease expires and 
the owner re-rents the premises, and your lease holds you responsible for 
the remainder of the rent due on the lease, you will only be responsible 
for the rent for those months that the premises remained vacant and the 
owner did not receive any rent, and for any difference between what your 
lease required you to pay per month and the amount the owner collected. For 
example, if your lease required you to pay $1,200.00 per month and the 
owner was only able to rent the premises to a new tenant for $1,000.00 per 
month, you may be responsible to pay the owner the difference between the 
two rents, or $200.00 per month, until the original lease term ends. If the 
owner rents the premises for more money than you were required to pay, you 
are not entitled to collect the excess difference from the owner. If the 
owner rents the premises immediately, without any loss, you may be entitled 
to get your security deposit back. Any lawsuit brought against you before 
the rent is due is premature.

If the owner does sue you for any rents remaining on the lease term and 
obtains a judgment, the owner can then pursue his or her legal remedies to 
collect the money from you, if you do not pay the judgment. The owner can 
seek to obtain a percentage of your salary directly from your employer, or 
can seek to have your bank turnover monies in your accounts, or can seek to 
have your property taken away from you and auctioned for sale in order to 
satisfy the unpaid part of the money judgment. An owner's attempt to 
re-rent the premises for the remainder of the term of the lease after you 
move out is called "mitigation of damages." At present, an owner is not 
required to take steps to "mitigate" the damages in a commercial premises. 
In a residential apartment, an appellate court has held that an owner does 
not have to take steps to mitigate damages in Manhattan or the Bronx. In 
other counties, the appellate courts have not ruled on this issue and an 
owner's failure to take reasonable steps to re-rent the premises may 
relieve you of your obligation to pay the rent until the end of the 
original lease term.

If you decide to vacate your space before the expiration of your lease and 
risk responsibility for any rents which come due, you should remove all 
personal belongings and surrender possession of the premises by returning 
the keys to the owner. This is because the owner may not legally re-rent 
the premises until you have clearly surrendered possession.

Depending on the type of premises involved, and the language of your lease, 
you may be able to assign your rights to the lease to a new tenant that you 
may find. However, the right to assign usually requires permission from the 
owner. You may have a legal right to sublet the premises which cannot be 
unreasonably denied by the owner. If the owner unreasonably withholds his 
or her consent to your sublet request, you may be able to break your lease 
without penalty. If you know someone who is interested in taking over your 
lease, you may want to bring your lease to an attorney to discuss your 
rights. In any case, an owner may agree to permit you to break your lease 
without penalty if you have found a new tenant.

In light of this information, it may be reasonable for the owner and tenant 
to discuss the tenant's breaking the lease and agree on an amount and or 
payment schedule to satisfy the owner's claim for rent remaining on the 
lease before resorting to litigation. If you are interested in free 
mediation of your dispute, you may contact Safe Horizons Mediation Centers. 
For more information see the section in this guide entitled, Resources and 
Assistance.

If you are seeking to break your lease because you are no longer able to 
pay your rent due to the loss of the family breadwinner or alimony or child 
support payments, the loss of your job, or for any other reason related to 
the events of September 11, 2001, you should see the section in this guide 
entitled, Resources and Assistance, where you may find information that 
will assist you with rent payments or other necessities that will enable 
you to pay your rent and remain in your apartment.

OWNERS

Like any other breach of contract, if your tenant breaks the lease, the 
lease usually provides that the tenant must pay a penalty. Most leases have 
clauses stating that the tenant will be responsible for the monthly rent as 
it becomes due until the lease term ends. Some leases, particularly 
commercial leases, may have a specific provision which requires the tenant 
to pay you a certain sum of money. Your tenant may be entitled to legally 
break the lease if the tenant has a legally valid reason, you give your 
permission, or the lease has a clause permitting the tenant to do so by 
following the lease's specific notification provisions. You should review 
your lease with a lawyer to see under what conditions the tenant may be 
entitled to break the lease without penalty and what are the penalty 
provisions.

If you believe that the tenant does not have a valid reason to break the 
lease, or if the tenant believes that he or she does, either one of you may 
start a "declaratory judgment" action in Supreme Court, where a judge will 
resolve the dispute. In general, emotional distress, inability to pay the 
rent, inconvenience, and loss of business, are not legally valid reasons 
for a tenant to break a lease. If the tenant clearly surrenders possession 
of the premises before the lease expires by informing you in writing and or 
by returning the keys, you may re-rent the space. If the tenant has 
abandoned the premises, but has not clearly surrendered possession, it may 
be advisable to bring a proceeding against the tenant to recover possession 
before re-renting the premises. If the lease provides that the tenant is 
responsible for the remainder of the rent left due on the lease, and you 
rerent the premises, you may seek to recover the rent for the months that 
the premises remained vacant and you did not receive any rent, and any 
difference between what the lease required the tenant to pay per month and 
the amount you are now collecting. For example, if the lease required the 
tenant to pay $1,200.00 per month and you were only able to rent the 
premises to a new tenant for $1,000.00 per month, you may be able to 
recover the difference between the two rents, or $200.00 per month, until 
the lease term ends. If you rent the premises for the same or more money, 
you are not entitled to recover the rent twice, since that would give you a 
windfall. If you rent the premises immediately without any loss, and there 
is no other damage to the premises, your tenant may be entitled to get the 
security deposit back.

Since the amount you may be entitled to recover from the tenant depends on 
when and how much the premises are re-rented for, you cannot bring a 
lawsuit to recover any money until the rent becomes due. Re-renting the 
premises for the remainder of the term of the lease after the tenant 
abandons the premises is called "mitigation of damages." At present, you 
are not required to take steps to "mitigate" your damages in a commercial 
premises. An appellate court has held that you are not required to take 
steps to mitigate your damages for those residential apartments in 
Manhattan or the Bronx. In other counties, it is advisable to consult an 
attorney as to whether or not your failure to take reasonable steps to 
re-rent the premises can relieve the tenant of the obligation to pay the 
remainder of the rent on the lease.

If the tenant has abandoned the premises, you may seek to enforce the 
provisions of the lease by bringing a lawsuit against the tenant. You can 
bring the case in the Small Claims Part of the Civil Court if you are suing 
for $3,000.00 or less; or in the Civil Court if you are suing for 
$25,000.00 or less; or in Supreme Court if you are suing for more than 
$25,000.00. Once you obtain a judgment, you can pursue your legal remedies 
to enforce collection of the judgment if the tenant does not pay the 
judgment. These remedies include taking a percentage of the tenant's salary 
directly from his or her employer, obtaining the money from the tenant's 
bank accounts, or obtaining the tenant's property for sale to satisfy the 
judgment.

Depending on the type of premises involved and the language of the lease, 
the tenant may be entitled to assign their rights to the lease, which 
usually requires your permission. The tenant may also have a legal right to 
sublet the premises to a new tenant, and you may be legally prevented from 
unreasonably withholding your consent. If the tenant approaches you and 
requests an assignment or sublet, you may want to consult an attorney to 
learn about your rights and remedies. In light of this information, it may 
be reasonable for the owner and tenant to discuss the tenant's breaking the 
lease and agree on an amount and or payment schedule to satisfy the owner's 
claim for rent remaining on the lease, without resorting to litigation. If 
you are interested in free mediation of your dispute, you may contact Safe 
Horizons Mediation Centers. For more information see the section in this 
guide entitled Resources and Assistance.

CO-TENANTS ON LEASES

If a tenant has signed a lease with another individual, and that individual 
died as a result of the tragedy, generally the remaining tenant is 
responsible for paying all of the rent each month until the end of the 
lease term. Most leases provide that co-tenants are "jointly and severally" 
liable for paying the rent, meaning that an owner can sue both co-tenants 
together or either of the tenants individually for back rent. The language 
of the lease must be examined.

----------
End Part 2