Before Being Your Litigator on a Case, Your Landlord and Tenant Attorney Should First Be Your Consultant


October 28, 2018

On October 25th 2018, Michelle Itkowitz spoke on a panel at the LandlordsNY Symposium. The panel was about how it takes a team to properly manage a building, especially in times of crisis. Michelle explained how landlord-and-tenant lawyers should only be a small part of a larger team when it comes to dealing with illegal Airbnb, non-primary residence, or hoarders. Landlords could save themselves a lot in legal fees and get better results in these matters if they involve, at the outset, other expert vendors such as investigators and consultants, who understand and follow the laws and the rules of ethics when it comes to tenants. This panel discussed how mutually beneficial solutions for both landlords and tenants are achieved when the landlord and tenant attorney acts first as a consultant, before acting as a litigator.

Below is an excerpt from the booklet Michelle prepared for the Symposium. 

Before Being Your Litigator on a Case, Your Landlord and Tenant Attorney Should First Be Your Consultant

To a hammer, every problem looks like a nail.[1] To a lawyer who spends every day running around Housing Court doing 25 cases at once with carbon-paper stipulations, every problem looks like it can be solved with a summary proceeding (a Housing Court case).
When owners and managers come to lawyers with problems like non-primary residence, illegal Airbnb, and hoarding nuisances, many lawyers first and onlyresponse is – the lawsuit!, i.e. litigation. That is the WRONG place to start. The lawyer should begin every engagement not as your advocate, but as a healthy skeptic of your position. The right thing for your lawyer to start with is questioning everything. The lawyer should test the health of the particular tenancy and the strength of the admissible evidence, to see if they can withstand the rigors of litigation.
For example, in Nachajski v. Siwiec, 55 Misc.3d 133(A) (App. Term 2nd Dept. 2017), a non-primary residence case, the court found that the lease was not properly renewed, thus Golub (the non-renewal period) never opened, and no non-renewal notice could be served. The non-renewal notice is a prerequisite to a non-primary residence case, therefore, even though there was evidence that the apartment was not the tenant’s primary residence, the court found for tenant.[2]Let’s look at an example of an interaction I had with a potential client on this issue:
Landlord:  Hi! My tenant in 6A no longer lives in her apartment, so I want to evict her for non-primary residence.
Lawyer:  OK the first thing I need is a copy of the full lease chain. I need the original lease, and all renewals, all riders, everything. And the DHCR printout.
Landlord:  Well that’s easy. I only have the one lease from six years ago when she moved in.
Lawyer:  Wait! What?! You have not been regularly renewing the lease as per the Rent Stabilization law?
Landlord:  Well…no… told you she doesn’t really live there anymore! I am kicking her out, silly, why would I give her a lease.
Lawyer:  Look – Non-primary residence isn’t a basis for terminating a lease, it’s a bases for NOT RENEWING A LEASE. By law, landlords have to make an offer to renew a Rent Stabilized lease between 90 and 150 days before the end of a lease term (known as the Golubperiod, after a famous case). During that renewal window, if the tenant is not living in the apartment as his or her primary residence, that’s when you give the tenant the non-renewal notice.
Landlord:  OK well let’s just give her that notice now!
Lawyer:  How can we? Are in between 90 and 150 days of the end of the lease?
Landlord:  No, we are even better, we are 4 years after the last lease expired!
Lawyer:  No! That’s NOT “even better”. That’s not the statute, that’s not how the law works. Not even close! You need to be within the 90 to 150 days before the end of a lease. Not four-years after the end of the lease.
Landlord:  Michelle, I think you are too hung up on these details…calm down…
Lawyer:  OMG the law IS details! And in landlord and tenant law, in particular, details really matter.
Landlord:  OK so I messed up, but what if we just send the notice anyway and see if she leaves?
Lawyer:  I don’t file cases that are defective. That is against the code for attorney ethics and its bad business for me and you. If I file the case and she gets a lawyer and they counter-sue you for something, then I can’t just discontinue. Also, you could end up paying the tenant’s legal fees. And in the time it takes to litigate the losing case, you could have renewed the lease properly and be headed for the next Golub period.
Landlord:  Ok so you are suggesting that I renew her lease!? I want to get rid of her and you are telling me to give her a lease. You are all mixed up, Michelle.
Lawyer:  Sometimes the only way out is through, and you have to go through the proper steps to get to where you need to be in these cases. Here, without a lease renewal in place, you can’t do the right termination of tenancy. Let’s send the tenant a renewal offer. Make the one-year option a zero percent increase no matter what the Rent Guidelines Board says, and perhaps the tenant will take only a one-year lease. Then, while we wait, you can install a camera and collect solid evidence that the tenant is not there.
If your lawyer does not check the lease renewal, you could initiate a whole case, only to lose it on a technicality (a determination it would take about six months to get). In that case, you then need to renew the lease (which takes another three months). And wait for the lease (probably renewed for two years) to expire before bringing another non-primary residence case, assuming the tenant has not moved back in permanently by the next renewal window. If your lawyer discovered the problem before initiating the case, there would be better ways to handle the situation. Offering the tenant a proper, defensible renewal with no funny business might result in the tenant taking the one-year (lower increase) renewal. In this instance, the case is delayed by a year, but it is better than losing the three years in the previous example and it also gives you plenty of time to garner camera evidence before the next termination opportunity in 8 months. 

[2] See also 160 Eagle St. v. Butler, 2017 NY Misc Lexis 4260 (NYC Civ. Ct. Kings Cty. 2017).