INFO=Keep Rent Stable/Controlled Apartment after Fire


Brooklyn Community Board 8 – FIRE SAFETY COMMITTEE

NY State Attorney General - TENANT'S RIGHTS GUIDE

Q► To keep your rent controlled or stabilized apartment if evacuation is ordered after a fire.
A► Evacuated tenants must notify DHCR/Division of Housing and Community Renewal. The tenant pays $1monthly until the apartment is habitable again and they can return to their apartment. The tenant should photograph all damage - clothes, furniture, walls, etc. and get a copy of the FDNY Fire Incident Report.

Problem: There will be a problem if the tenant lacks private apartment insurance because their personal items are not covered by the landlord's insurance policy. Landlord is only liable for repair of the apartment and the building. However, a case can be made against the landlord if FDNY or NYPD determines that the fire was due to landlord negligence. Also, the tenants might be able to file an HP/ Housing Preservation action for repairs due to the fire and also file a rent reduction request to DHCR because of the fire. This might not require a FDNY Fire Incident Report on the fire but it wouldn't hurt. Quotes from DHCR Operational Bulletin 95-2:

Quote: IV. "Constructive Occupancy" by Rent Stabilized Tenants in Substantially Rehabilitated Buildings - "In certain cases, because of the existence of hazardous conditions in their rent stabilized housing accommodations, e.g., fire damage, some rent stabilized tenants may be ordered by a governmental agency to vacate the housing accommodation. Such Vacate Order may create a "constructive occupancy," providing for payment by the tenant of a nominal rental amount such as $1.00 per month, while the Vacate Order is in effect, and permitting the tenant to resume occupancy without interruption of his/her rent stabilized status, upon restoration of the housing accommodation to a habitable condition."

Where the building has been substantially rehabilitated, constructive occupancy will have the effect of excepting the housing accommodation from exemption from rent regulation based upon such rehabilitation."However, the exemption from rent regulation based upon substantial rehabilitation will apply to all housing accommodations in the building which are not "constructively occupied" or actually occupied by a previously rent regulated tenant. In addition, the exemption will also apply to a constructively occupied housing] accommodation if the returning tenant subsequently vacates, or if the tenant who is entitled to return pursuant to court or DHCR order chooses not to do so."

1. Tenants should immediately file RA-81 form with DHCR to reduce rent to $1 - no prior notice need be given to landlord in case of vacancy due to fire according to the form.

2. Tenant should also request expedited proceedings - see DHCR Fact Sheet #34 (fire damage or other conditions amounting to constructive eviction "may" warrant expedited service).

3. It helps to write, in red ink, FIRE -- PLEASE EXPEDITE on the RA-81 form.

4. If the Tenants can obtain a photocopy of a vacate order and attach that to the form, it is helpful. Take the vacate order/s off the doors, photocopy it/them, then put it/them back on the door/s.

5. If the Tenants can obtain a copy of the FDNY Fire Incident Report and attach that, it can be helpful. NOTE: Getting a copy of the FDNY Fire Incident Report is a bit cumbersome and takes some time, You must send a request letter (stating the date and address of the fire) to the NYC Fire Department at MetroTech and you have to enclose $1 and a self-addressed stamped envelope per FDNY Fire Incident Report. Eventually, FDNY will mail the report. Rather than delay filing the RA-81, the FDNY Fire Incident Report can be submitted to DHCR later.

Fire Incident Report REQUEST FORM (complete, enclose $1 per Report and self-addressed stamped envelope)
9 Metrotech Center
Brooklyn 11201

A The DHCR filing is a critical first step. NEXT STEPS ARE:

1. get an expert, if possible, to estimate the amount of time it would take for restoration.

2. Bring an HP, whether or not you have access to an expert.

3a If you do get an expert HP, try to get your expert's opinion accepted as the deadline for restoration of the tenants to possession.

3b If not, then get a plain vanilla repair order, ASAP.

4. Deal last with the property damages issues.

B The best practice is to make an inventory of damaged property, photograph the damaged property, document if possible the value of the damaged property, keep tabs on any relocation expenses, including meals, and write a demand letter seeking reimbursement that states that damages are still accruing, that contains the magic words "refer this matter to your insurer" and that says when you will dispose of the damaged property if the insurer has not inspected it. Although it is not top priority until after the apartment is restored, a negligence lawyer should be used for any claim over 5K (more than a small claim), and the lawsuit should wait until after the HP resolves (so findings of contempt, other bad conduct by landlord can be included).

1. File an HP case ASAP! This will put the Landlord on undisputable notice that the tenant wants the apt back, and, even if the court allows a lengthy period for repairs, the Tenant will still have an enforceable court order that entitles your client to be restored to possession.
2. File a decrease in services application with DHCR, asking the rent to be set at $1 (is there an HPD Vacate Order?). DHCR will set the rent at $1 and the tenant should pay that amount each month by check and keep the landlord informed as to where the landlord should contact the tenant when the building is again ready for occupancy.

1. It helps to write in red ink "FIRE -- PLEASE EXPEDITE" on the front of the services/rent decrease application filed with DHCR.

2. Get a copy of the FDNY Fire Incident Report. If the tenants can get a copy of the Fire Incident Report from FDNY, they can attach that to the application. Same thing for a copy of a vacate order.

3. Once DHCR reduces the rent to $1 per month (which should be retroactive to the date of the fire) it is important that the tenants send the landlord a check for one dollar each month. I advise tenants to accompany this with a letter stating that the check is for rent for the month of ____, and send it certified mail, return receipt requested. If a group of tenants, there can be one letter for several apartments, enclosing each tenant's check, signed by a tenant representative.

4. Sending the landlord a check for $1 each month should be done every month whether the Landlord cashes the checks or not.

5. The Landlord will likely continue to send monthly rent bills for the pre-fire rent stabilized rent, and by the time the matter is resolved the tenants will "owe" thousands of dollars of back rent. But these rent demands have no legal power and should be ignored.

1. Because the tenants are out of the building, filing an HP proceeding should be pursued without delay.

2. Landlords often try to avoid allowing the original tenants to move back in.

3. It gives the tenants some leverage if the Landlord tries to delay repairing the fire damage in the hope that the Ts will get discouraged and give up.

4. In some cases Landlords want to get the work done quickly, in others they try to drag it out for months or even years.

5. If the Tenants are in different locations, they should make sure they all know each other's phone numbers and addresses, and that if one of them relocates temporarily the others need to know the new contact information.

6. Once repairs are completed the Landlord must file a rent restoration application with DHCR in order to restore the rent back to the stabilized rent.

EXPERIENCE: Filing HP actions and DHCR rent reduction applications were the keys to returning tenants to their homes quickly. Notify the tenants' nearest post office that the tenants have been locked out of their apt buildings and that they wish to collect their mail from the post office. If the fire was a recent event, go to HPD Emergency Relocation Unit at 100 Gold Street for emergency relocation services. HPD will verify the tenants' eligibility for services and provide temporary shelter through contracted housing providers and will also provided the displaced tenants with priority preference for NYCHA and/or HPD housing. Permanently or temporarily housed tenants can still retain their tenancy rights in their original homes if they choose return. One advantage of getting the FDNY Fire Incident Report (and attaching it to the reduction in services complaint) is to see what FDNY says is the likely cause of the fire. If FDNY thinks the TENANT might be responsible, then getting the apartment back for the tenant client becomes a real concern. But if the FDNY Fire Incident Report does not include negligence by Tenant as a possible cause, there would seem to be no chance that DHCR would find the Tenant responsible.
It takes a couple of weeks to get the Fire Incident Report report from FDNY.
Fire Incident Report REQUEST FORM (complete, enclose $1 per Report and self-addressed stamped envelope
9 Metrotech Center
Brooklyn 11201

The HPD regulation covering relocation assistance to persons displaced as the result of the enforcement of a vacate order is 28 RCNY 18-01 (attached).
HPD's Emergency Housing Services Bureau is responsible for providing relocation assistance to tenants displaced as the result of a vacate order.

2. A description and contact phone number -- 212-863-8561 -- for EHSB is given at http://home2.nyc.gov/html/hpd/html/tenants/ehsb.shtml

The administrative hierarchy above EHSB is described at http://home2.nyc.gov/html/hpd/html/about/office-descr-housing-ops.shtml

In Cupidon v Donovan, the court required HPD to provide relocation assistance to a tenant displaced from an illegal apartment.

HELP FOR TENANTS - read article on the City Limits web site.

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