Landlord's Rights to Access an Apartment for Repairs When Tenant is NOT Cooperating; Tenant Asking for Contractor's Licenses

Landlord’s Rights to Access an Apartment for Repairs When Tenant is NOT Cooperating; Tenant Asking for Contractor’s Licenses

November 11, 2015

This post originally appeared on November 11, 2015, on the LandlordsNY blog, where Michelle Maratto Itkowitz is the “Legal Expert”.

Question: “I’m the managing agent of my mother’s three family house. This is a new job for me. The tenants are rejecting my authority by being difficult. One of my concerns is the tenant on the second floor is now requesting that the contractors have licenses and that she will refuse entry to her rental if they do not show their licenses. Can she do that? As well I thought the landlord or managing agent could enforce access to the rental whether the tenant was there or not? Is that legal? Do I need her permission?”

Answer: I am getting questions about access a lot lately!

AN OWNER’S RIGHT TO ACCESS A RESIDENTIAL APARTMENT IN A MULTIPLE DWELLING

Statute Regarding Access

As always, the best place to start is by looking at the statute that relates to your question. The Rules & Regulations of the City of New York § 25-101 (Owner’s Right of Access) states:

“(a) Owner to give notice. Where an owner seeks access to an apartment, suite of rooms or to a room, under the provisions of § 27-2008 in order to make inspection therein for the purpose of determining whether such places are in compliance with the provisions of the multiple dwelling law of the administrative code, he shall notify the tenants that he will seek access to the apartment, suite of rooms, or rooms, not less than twenty-four hours in advance of such time. Where an owner, contractor or agent of the owner seeks access to make improvements required by law or to make repairs, notice shall be given to the tenant not less than one week in advance of the time when the improvements or repairs are to be started. However, where repairs are urgently needed in emergencies to prevent damage to property or to prevent injury to persons, such repairs of leaking gas piping or appliances, leaking water piping, stopped-up or defective drains or leaking roofs, broken and dangerous ceiling conditions, no advance notice shall be required from the owner, agent, contractor or workman.

(b) Notices to be in writing. Where an owner is required to give notice in advance of seeking access to an apartment, suite of rooms or to a room, as required by subdivision (a) of this section, such notice shall be in writing and shall contain a statement of the nature of the improvement or repairs to be made.

(d) Hours when access to be permitted. Except in emergencies, access to an apartment, suite of rooms, or rooms, shall be limited, to the hours between nine antemeridian and five post-meridian. Access shall not be required on Saturdays, Sundays or legal holidays except in emergencies.”

A Lease Provision Regarding Access

Of course, a lease can always make those requirements more stringent, so check your leases. LandlordsNY and I are actually working on a draft of a residential lease for LandlordsNY to offer to its members. We did an original thing here, we combined the warranty of habitability language with the access language – and we thinks it works well! This is what the “access” paragraph will say:

WARRANTY OF HABITABILITY AND ACCESS TO ALL PARTS OF THE APARTMENT

(A) The Apartment is subject to the provisions of the Warranty of Habitability Law in the form it may have from time to time during this Lease. Under that law, Landlord agrees that the Apartment is fit for human habitation and that there will be no conditions which will be detrimental to life, health or safety.

(B) Tenant will do nothing to interfere or make more difficult Landlord’s efforts to fulfill the warranty of habitability. Any condition caused by a Tenant’s misconduct or the misconduct of anyone under Tenant’s direction and/or control shall not be a breach by Landlord.

(C) During reasonable hours and with reasonable notice as required by Rules & Regulations of the City of New York § 25-101 or any successor statute, and except in emergencies, and then as required by law, Landlord may enter the Apartment to erect, use and maintain pipes and conduits in and through the walls and ceilings of the Apartment; to inspect all parts of the Apartment and to make any repairs or changes that Landlord decides are necessary. The rent will not be reduced because of any of this work, unless required by law.

(D) In the event of an emergency which affects the safety of the occupants of the Building or which may cause damage to the Building, Landlord may enter the Apartment without prior notice to Tenant, as required by law. If at any time Tenant is not personally present to permit Landlord or Landlord’s representatives to enter the Apartment and entry is necessary or allowed by law, Landlord or Landlord’s representatives may nevertheless enter the Apartment. Landlord will not be responsible to Tenant for any damages which Tenant incurs in such case.

(E) Failure to provide access as per this section is a breach of a substantial obligation of this Lease.

GOING IN TO A TENANT’S APARTMENT WITHOUT TENANT’S CONSENT

Practical advice – There is always a risk when you enter an apartment without the tenant’s consent. If the tenant is not there, the tenant could say that your vendor took his original Picasso and his diamond rings. If the tenant is there, he could get violent (G-d forbid). My sincere advice after many years in this business is to advise landlord’s to never enter an apartment without a tenant’s consent unless there is a serious emergency.

WHEN IT COMES TO ATTEMPTS AT ACCESS — PAPER IT

The concept of “Access” becomes a big deal in Housing Court – both in residential nonpayment proceedings (where the tenant claims not to be paying the rent due to warranty of habitability issues) and in Housing Part “HP” Proceedings (where the tenant is taking the landlord in to court to get repairs). Landlords must understand the importance of keeping and documenting the circumstances of appointments for access to repair bad conditions in an apartment. Here are my:

Tips For Documenting Attempts To Gain Access To An Apartment

• If there is an online system for tenants to request repairs and the landlord to arrange access and dispatch repair people, then use the system carefully and make sure you keep all the records created by the system.

• Send letters, certified letters, and/or emails to tenant requesting access as per the above statute; and affix a copy of the request on the door in a sealed envelope and take a picture of the letter taped to the door.

• Document all your attempts to get in. Take pictures or video of the failed attempts at access.

• Save contractor receipts that show the attempts as well.

• If the matter is very contentious, have your lawyer contemporaneously prepare an affidavit for the super and/or vender is to sign regarding their attempts to gain access.

FREQUENT REASONS TENANTS GIVE FOR NOT ALLOWING ACCESS

I get asked often about two excuses for tenants not wanting to allow access, and neither reason is legitimate.

“I’ll do the repairs myself and bill you.”

Sometimes Tenant says, “I’ll do the repairs myself and bill you.” Tenant cannot do her own repairs and bill Landlord. The authority for this comes from the contract between the landlord and the tenant – the lease. Most leases will say that Tenant cannot build in, add to, change or alter the Apartment in any way. A leading case here is Mengoni v. Passy, 254 A.D.2d 203 (First Dept. 1998). In this case, the Landlord brought an action seeking to evict rent controlled Tenant, based on Tenant’s replacement of kitchen and bathroom appliances and fixtures without landlord’s prior consent. The Civil Court, New York County dismissed the petition and awarded Tenant punitive damages. The Landlord appealed. The appellate court held that Tenant’s actions did not constitute substantial breach of no alterations clause of lease because Landlord failed to respond to Tenant’s repeated complaints and demands to have items fixed, warranting Tenant’s actions.

“I need to see the contractor’s license.”

Sometimes Tenant says, “I need to see the contractor’s license and/or Identification.” I cannot find any authority that gives Tenant a right to ask for a contractors licenses before allowing them to enter the apartment. In fact, I found a DHCR proceeding where a tenant was not allowed to challenge repairs that the landlord did on the basis that the contractor was unlicensed. In The Matter of the Administrative Appeal of Joann Brown; DHCR Admin. Rev. Dckt. No. PK210080RT (3/12/02); LVT Number: 15801.

WHEN A FREE MARKET (NOT RENT STABILIZED) TENANT DENIES ACCESS EVEN AFTER PROPER NOTICE IS GIVEN – TAKING THE TENANT TO COURT

When a free market (not Rent Stabilized) tenant denies access even after proper notice is given, the next step is for the Landlord to give Tenant a notice to cure lease default pursuant to the lease’s default clause, which specifically details all of landlord’s attempts to gain access (see “Tips For Documenting Attempts To Gain Access To An Apartment” above). If the cure period runs out and Tenant still has not provided access, then Landlord can give tenant a notice of termination of the lease pursuant to the lease’s default clause.

Upon the expiration of the termination notice, Landlord can then bring a summary holdover proceeding against Tenant in Housing Court. As a practical matter, most such holdovers end with Tenant stipulating to provide access. If Tenant defaults under such stipulation, the stipulation should provide for the case to be restored to the court’s calendar for further relief, such as money damages and/or a judgment of possession.

WHEN A RENT STABILIZED TENANT DENIES ACCESS EVEN AFTER PROPER NOTICE IS GIVEN – TAKING THE TENANT TO COURT

A Rent Stabilized tenant’s unreasonable refusal to permit the landlord access to the unit to make necessary repairs or improvements required by law, or to show the unit to prospective purchasers or mortgagees, is a ground for termination. 9 NYCRR § 2524.3(e).

When the landlord seeks access to a Rent Stabilized unit in New York City for the purpose of an inspection or a showing, Tenant must first be afforded at least five days’ advance notice so that the parties may attempt to arrange a mutually convenient appointment. 9 NYCRR § 2524.3(e). If Tenant fails or refuses to provide access, then depending on the terms of the parties’ lease agreement, the landlord may need to serve a ten-day written notice to cure the violation. 9 NYCRR § 2524.3(a); B.A. Associates Equities Corp. v. Baez, N.Y.L.J., 1/6/93, p. 25, col. 2 (Civ. Ct., Kings County). If the breach continues thereafter, the landlord may issue a termination notice at least seven calendar days prior to the intended termination date. 9 NYCRR § 2524.2(c)(2).

CONCLUSION