January Insights
By Eileen O’Toole, Esq., Contributing Editor
An early, significant development of the new year was the end to New York’s eviction moratorium on Jan. 15, 2022. The State’s Unified Court System quickly issued both an Administrative Order (AO/34/22, LVT #31816) and an explanatory Memorandum (LVT #31815) to provide procedural guidance for landlords and tenants involved in long-standing eviction proceedings.
While landlords no longer need to serve tenants with Hardship Declaration forms when serving predicate notices or housing court petitions, a tenant’s filing of a Hardship Declaration may still provide a defense in an eviction case under provisions of the Tenant Safe Harbor Act (TSHA). And, if a tenant has filed an Emergency Rental Assistance Program (ERAP) application, an eviction case generally will be stayed pending the final determination of the tenant’s application (see LVT ##31785, 31819). However, ERAP doesn’t apply to cases involving nuisance behavior or property damage. In one long-pending eviction case, a court ordered a tenant to pay use and occupancy pendente lite for periods before and after the 15 months for which tenant was awarded ERAP assistance (LVT #31782).
While courts are open for either in-person or remote appearances and, post-moratorium, housing court is putting long-delayed cases back on the calendar, the COVID pandemic continues to affect matters both of procedure and substance. Courthouses are navigating through shortages of staff and resources, and housing courts are incorporating aspects of virtual case management in order to, perhaps permanently, cut down on unnecessary crowding and wait times.
The pandemic continues to touch upon various aspects of landlord-tenant relations. In one case (LVT #31811), the NYC Office of Administrative Trials and Hearings (OATH) upheld a violation by DOHMH against a tenant found to have violated a travel advisory quarantine order, and fined him $1,000 after a DOHMH canvasser found he wasn’t at home when the agency visited to check up.
The DHCR continues a recent trend away from excusing landlords, who may have mistakenly deregulated apartments while a building received J-51 tax benefits, from findings of “willful” rent overcharge. For some years after the Court of Appeals’ 2009 ruling in Roberts v. Tishman Speyers that vacancy deregulation and high-rent/high-income deregulation were barred by law during a J-51 tax benefit period, courts and the DHCR consistently found no willful overcharge by landlords, on the theory that many simply followed the DHCR’s own overruled policy that permitted such deregulation. However, as more time has gone by, a shift toward imposing treble damages for willful overcharge in these cases has emerged, particularly where a landlord may have failed to correct the improper deregulation long post-Roberts. See, for example, Matter of 308 West 49 LLC (LVT #31804).
The DHCR recently approved a landlord’s application to modify building services by replacing a steam pipe and radiator with an electric baseboard heating system. Notably, the DHCR approved this service substitution on condition that the landlord continued to pay for heat by supplying the electricity at its own cost (LVT #31794).
Some interesting points were made in recent DHCR rent overcharge determinations. There was no overcharge where a landlord added an MCI rent increase to a tenant’s preferential rent (LVT #31808). One missing annual rent registration in the middle of a four-year lookback period resulted in a rent freeze and overcharge finding (LVT #31805). A tenant who waited until filing a PAR of an overcharge ruling before seeking attorney’s fees could not do so at that late point in the game (LVT #31803). And one recent rent overcharge decision resulted in a $245,000 refund determination, including treble damages (LVT #31787).