Volunteer Lawyers Manual

Must include: From Manhattan

conflict issues:

reviewing forms (not supposed to really) (,)
attorney worked for firm on Ct papers (,)

nonpays (5)

Service of nonpays for those wanting to bring it: (note, the person cannot serve it, must get process server or friend, also, atty cannot sign it)
serve rent demand and have affidavit of svc filled out
after 3 days copy demand & affidavit, and fill out npp. Go to clerk office w/all 3
buy index & they stamp it
Give original of everything except the notice of petition (i.e. orig of petition, demand & affidavit) to ct.
serve copies of npp
then come back w/original of notice of petition with affidavit of service that you served the copies w/in 3 days

holdovers (13)

succession rights (6)
(note: what are income affidavits? From DHCRs website on mitchell lama “What are my responsibilities with respect to reporting my income? All tenants in DHCR supervised Mitchell-Lama developments are required to report their income, and the income of all household members, annually and to comply with housing company requests for documentation. Tenants in federally-assisted developments are subject to HUD's annual income re-certification requirements. Tenants in non-federally-assisted developments are subject to DHCR's annual income review procedure.
“I forgot to file my income affidavit on time and was assessed a 50% surcharge on my July rent bill. I brought my completed affidavit to the management office as soon as I realized my mistake. Although management agreed to remove the surcharge going forward, they advised me that they could not remove the surcharge already billed for July. Is this correct? Yes. When a tenant who is subject to DHCR's annual income review procedure fails to submit a completed income affidavit, or necessary documentation, management is required to give the tenant one month's notice that a 50% surcharge will be added to the rent. Once the affidavit or documentation is submitted, management is required to recalculate the surcharge on the basis of the submission and the effective date of any resulting rent change should be the first of the following month. Management is not permitted to waive a surcharge that has already been assessed due to the failure of a tenant to submit the income affidavit on time.”
succession note: if the parties move in together initially into the building, then they don’t have to live together 2 yrs. can just be from the inception of the lease.
nonprimary residence/illegal subletting (7)
chronic nonpay ()
nuisance (1)
overcharge/profiteering (1) (where LL brings against tenant for overcharge to get tenant out)
illusory tenancy
licensee HO (2)

licensee/squatter proceedings (#LL or prime tenant wants to bring one) (6)

couple of caveats here: first, did LL authorize to bring? see RS/RC rules. Second, did they overcharge the subtenant? That can go against them, b/c LL can get THEM out if they know… Third, and most often, how did they accept rent? If monthly, that’s fine, can do a 30 day notice. The notice has to tell what date rent was due. If weekly or some other arrangement, that is problematic in Manhattan. What matters is the original agreement with the subtenant, NOT whether they paid or didn’t pay…
if roommie NEVER paid, then it is more problematic, b/c they can allege family relationship…
also note: ct atty cannot fill out forms for them. they have to do it themselves.

illegal lockout (1)

Marshal’s notice (2)

LL or prime tenant overcharge (see tenant.net article – relative merit of DHCR complaint v. Housing ct…Housing ct wins) (1)

HP proceedings, how to bring (last resort) or brought one (2)

Repair issues: can repair & deduct, I think, (check) but cannot improve & deduct
check what repairs are. Is LL overcharging for making repairs that he shouldn’t have charged for? i.e. leaks, etc. LL may not be entitled to increases she is charging
LL supposed to paint every 3 yrs
what is repair and what is renovation
no rent abatements w/HP actions

constructive eviction? Civil ct I think???

Defenses:

Petitioner no standing to bring case ()

tenant cured violation ()

improper service ()

no ct papers before marshal’s notice (,)

repairs/LL violations for nonpay (,)

repairs/LL violations for nuisance HO (,) (311 calls)

retaliation

Misc.

Preferential rents (2)

448 West 54th Street Corp. v. Doig-Marx
Jul. 14, 2004 - Lease rider that contemplated for preferential rent for the term of the tenancy is not affected by 2003 amendment to the Rent Stabilization Code that allows a landlord to charge legal regulated rent upon expiration of preferential renewal lease.

Complying with a stip, what happens if tenant can’t

LL (and tenant) have 45 days to comply w/stip

Inspections (1)

Adjourning (1)

Security deposits (1) (LL must return w/in 30 days)

SCRIE (2)

Rent increases, tenant has question (RS/SCRIE issues, can get rent history from LL, DHCR issues, i.e. has LL applied for MCI, etc) (2)

side note: DHCR regulates rent for most SROs

Assigned counsel cases (2)

Section 8 (3) (note, LL ct papers must allege § 8 or they are defective)

Tenant credit agency (2)

guardian issues (1)

Jiggets

RS rights

7A cases brought by HPD or tenants

money resources (one shot deal, charities, etc) (2)

atty fees

squatters (1) if a person is in the apt > 30 days, they must be evicted by summary proceeding only. NO SELF HELP. Cannot just lock them out. This may be what people mean by “squatter’s rights”.

How to approach person:

those w/court papers:

look at type of building
look at papers, NP or HO, and court date
look at papers for defects
look for defects in service
If HO look for:
RS,
succession
illegal sublet
chronic np
If NP, why didn’t they pay?
condition in building?
HP
What stage is case?
lockout
post eviction
trial /end game options?

Conflict info:
legal advice/legal info
Legal information: “written or oral statement that describes and explains court procedures, the law, legal terminology and options available to court users without interpretation, reference or application to a specific actual or potential case or situation. Generally, questions seeking legal information contain the words “can I,” “how do I” and “what do I.””
Legal advice: is a “written or oral statement that applies or interprets the law as it relates to an actual or potential case or situation and /or recommends a specific course of action for the case or situation. Generally, questions seeking legal advice contain the words “should I” or “whether.”
unbundled…ghostwriting, etc.
Preliminary questions: (i.e. ones that are usually asked at front desk)
is there a case in ct
if no, then is there a quick question
if no, do they want to bring a case
do they have a lawyer? if yes, we can’t help them
can we help them at all? sometimes it’s another issue entirely and it helps to know when to refer them to another ct. (i.e. actions in ejectment? SC, family ct, small claims, etc?)
how to look up rent violations
looking at the court papers/printout
**important notes:
wrt service: if possible, can always claim improper svc if there is any question, b/c if not claimed, it is waived…
LL shouldn’t come into apt w/out consent unless it is an emergency (check whether this is just for rent regulated?)
Security deposit must be returned w/in 30 days
note wrt illegal lockouts: if a person has been in the place > 30 days, they cannot be locked out. The LL must proceed thru the court process to get them out. This may be what is termed “squatter’s rights?”
squatter = no permission to be in
licensee = has permission/guest

Overview of L&T process (chart?).

(from lawhelp.org)

INTRODUCTION

Court administrators changed the way that cases are handled in the housing court as of January 1998. These changes affected both non-payment and holdover cases. Please note the differences in these cases as you read this information sheet.

FINDING YOUR COURT ROOM

Non-payment Cases — After you answer the petition/notice of petition for non-payment, the clerk will give you a copy of the answer form with the responses you gave. At the bottom of this answer form you will find the date and time that you are to return to court. It will also contain the room number for the Resolution Part to which your case was assigned.

Holdover Cases — When you receive the petition/notice of petition, it will contain the date, time, and courtroom that your case was assigned.

YOUR FIRST DAY IN COURT

You should arrive early on each day that you go to court. You may have to wait on line to go through metal detectors or to use an elevator. You must be on time. You should always bring all copies of your court papers and anything else related to your case. It is also helpful to bring paper and a pen to take notes and some change for photocopying or the telephone.

Outside of the courtroom, there may be a list of cases scheduled for that day. If there is no list, or if your name is not listed, you may try to speak with the court officer or court attorney in that courtroom to make sure you are in the right place. If they cannot help you, you can go to the information window in the clerk's office.

If your name is listed outside of the court, you should go inside and wait for your name to be called by the court clerk. While you are waiting, your landlord's attorney may try to speak with you about your case. You do not have to speak with this attorney without the judge or the court attorney present.

ADJOURNMENTS (Postponing your Case)

Non-payment Cases — If you need repairs done in your apartment or building, you may want a court-ordered inspection. You may ask the judge for an adjournment (postponement) for the inspection.

Non-payment Cases and Holdover Cases — If you do not have an attorney with you, you may want to ask the judge for an adjournment for time to seek an attorney. You may also be able to obtain an adjournment if you are not able to come to court due to serious illness or hospitalization.

NEGOTIATING A SETTLEMENT IN THE RESOLUTION PART

In the Resolution Part, the goal is to settle the case through an agreement, called a "stipulation". The agreement should be negotiated in the courtroom, in the presence of a judge or the court attorney. Neither the judge nor the court attorney can advocate for you.

It is very important that you tell the judge or the court attorney the facts about your case, including your defenses and counterclaims. Although you may have already stated these defenses and/or counterclaims to the clerk when you answered, you must state them again during the court case.

(For more information on how to defend yourself, please review the Task Force information sheet on Non-Payment or Holdover proceedings).

Non-payment Cases — Your defenses may include partial payment, repair issues (warranty of habitability), etc.

Non-payment Cases and Holdover Cases — In addition to the defenses above, you may have been improperly served with the court papers, you may have not been given proper notice before the cases was filed, or you may have corrected a problem which the landlord claims has ended your lease.

You may be under some pressure to sign a stipulation, in the hallway or in the back of the courtroom. A stipulation is a binding agreement, like a contract. You should not sign a stipulation if you are uncomfortable with it or do not understand its terms. Remember that you have a right to speak with a judge. Because the "stipulation" is a binding agreement, it can not easily be changed if you are unable to keep to the agreement (for example: pay according to a payment schedule). (For more information on negotiating a stipulation, please review the Task Force information sheet on stipulations. This information sheet contains explanations of many legal words and phrases that may be helpful to you.)

If you and the landlord sign a stipulation, the resolution part judge will read the stipulation to you and ask if you understand the terms of the stipulation. You should ask questions about anything that you don't understand, or anything that you are concerned about. This process is called "allocution" and is required by law. The judge will then sign it and you will receive a copy of the stipulation.

If you cannot reach a settlement with the assistance of the judge, your case will be transferred to a Trial Part. In many instances the trial can begin on that same day or the next day. It is best to be prepared.

GOING TO TRIAL

Once a case is sent to the Trial Part, both sides are expected to be ready to present their side of the case. A trial will include formalities that you may be unfamiliar with. If you have questions about the trial process, you should consult the Court guide to Trials or the housing court counselor (pro se attorney). The landlord or his/her attorney must present his/her case first. Once they are finished, you will have the opportunity to present your case (defenses and counterclaims). While each side is presenting their case, the other side can ask questions about information being presented (cross-examine). Each side can also bring witnesses and/or introduce or subpoena supporting documents (for example: government documents, photos, rent receipts) to support their position.

WHAT THE LANDLORD IS GENERALLY REQUIRED TO PROVE:

He /She is the proper person to sue the tenant (generally, by showing a certified copy of the deed),
A landlord-tenant relationship (lease or testimony as to the oral understanding between tenant and landlord or that this relationship was terminated,
A valid multiple dwelling registration (for buildings with three (3) or more units),
If the apartment is rent stabilized, that there is a current registration with the Division of Housing and Community Renewal (DHCR)
The rent claimed is the legal (or agreed upon) rent,
The landlord has made a rent demand, given notice of termination or a notice to cure, and
After a proper demand was made, the tenant has not paid the rent or that after a notice to cure the tenant has not made an appropriate change

FACTS THAT A TENANT CAN PRESENT AT TRIAL

Failure of landlord to repair conditions in your apartment after being notified by you (supported by your or other witnesses' testimony, photos, inspection reports etc.).
That you do not owe the money claimed by the landlord (rent receipts or other proof of payment).
That the rent is not the legal rent (supported by a certified copy of a DHCR printout.
That you have a right to stay in the apartment (examples: you have succession rights, you have cured any breach of the lease, etc.)

Note: In Non-payment Cases, generally, the judge will not consider your personal financial problems (illness, loss of job, etc.) as a legal defense to the landlord's claim for rent arrears.

Holdover:
definition: Holdover proceeding is where LL says right to occupy has expired for some reason (or there never was one?) and there is no L&T relationship. LL wants possession b/c tenant is in space “adversely”.
Papers: LL (or prime tenant) serves tenant (or sub, or licensee) w/predicate notices: 10 day or 30 day notice to cure or terminate. Then, after the period is up, LL may serve w/notice of petition and petition. (wait, there are 2 steps: notice to cure and THEN a notice to term prior to npp, but not in nuisance cases
Tenant can cure w/in the period, this is a defense to HO.
10 day notice to cure: tenant can cure w/in 10 days.
30 day notice to terminate. This goes by the term of the lease. Used to terminate a month-to-month tenancy (i.e. a roommate paying monthly, or a person with no lease, or whose lease has expired and is considered month to month)
If LL gets a judgment against tenant, they can evict. They get a Marshall’s notice of eviction against tenant.
Practical:
conditional limitation. In lease (para 17?) there is automatic termination on default, power to terminate must be in lease (or statute) in “default” section, must be premised on an agreement or on statute (illegal acts, etc ). This is roadmap for how LL must terminate. Look at each lease. Usually, rent default will not be included. If it is, a residential tenant still cannot be terminated by HO for nonpayment (unless for chronic nonpayment, see below). Commercial tenant can be.
RPAPL 753(?

Holdovers

Notices:
usually must receive a notice to cure, (10 day) then a notice of termination 10 days later. (but not in nuisance cases
if not required to give a notice to cure and term, LL can give a notice to quit (30 day?)
then after that, serve npp. The NPP will have the court date in it. tenant can answer orally or in writing on that ct date or answer in writing before the ct date.
answer (possible defenses VA may be able to give to tenant)
what LL claims tenant did or didn’t do is not true
notice to cure/terminate is not specific enuff
improper service
LL accepted rent after the date listed in notice of termination and before tenant was served w/npp. Be alert for this one.
LL is retaliating
predicate notice was not signed by LL or authorized agent
tenant has succession rights (even tho lease is not in their name) (see succession rights issues)
no MDR registration (illegal apt)

Holdovers: (from notes and video program)