Saturday 16 December 2017

The “Do-It-Yourself” Tenant

Stopping Unauthorized Renovations in Residential Premises

The scenario plays itself out all to frequently. It starts with an urgent message that a tenant has been making renovations in her apartment without prior authorization, although the lease terms required it.

Worse yet, the scope of the tenant’s activities is totally unknown. She could be performing a “gut renovation,” which may entail the demolition of interior walls or other actions that could compromise the structural integrity or present a real fire or safety hazard to other tenants in the building. In addition, the unauthorized renovation work, often performed without securing any permits from the Department of Buildings, may result in the imposition of a violation on the building itself, leading to possible fines and penalties.

Certainly, an eviction proceeding could be brought against such a tenant in Housing Court, for breaching a substantial obligation of the tenancy, assuming the construction work is somewhat substantial. Such an eviction proceeding would be predicated upon the service of a Notice to Cure the violation of the substantial obligation of the tenancy. Typically, the Notice to Cure would specify the provisions of the lease being violated, and would set forth a time period proscribed by the lease, in which the tenant could cure the alleged violation.

But this poses a problem for the landlord. What if the tenant continues to perform the renovation work in her apartment even after the service of the Notice to Cure? The tenant may erroneously believe that she could finish her renovation project within the cure period, then sit back and tell the landlord that she is no longer performing construction or demolition work within the apartment. The service of a Notice to Cure, and the subsequent service of a Petition to commence a summary eviction proceeding may not stop the tenant from continuing to perform the unauthorized work in the apartment.

The landlord therefore needs a mechanism to stop the tenant immediately, lest he risk the aforementioned health and safety hazards to other tenants in the building, as well as being subjected to fines from the City of New York. Only the Supreme Court has the authority to issue equitable relief, in the form of an injunction, to stop the tenant. Housing Court does not have the authority to issue such injunctive relief.

Thus, even prior to the service of the Notice to Cure, which is the precursor to an eviction proceeding, the landlord could file an Order to Show Cause in the Supreme Court, seeking an order stopping the tenant from performing any further construction or demolition work in her apartment. Incorporated within the Order to Show Cause would be a temporary restraining order (“TRO”) that immediately stays any further work in the apartment.

Finally, it is important for the TRO to be carefully worded, so that it will not jeopardize the maintenance of a subsequently commenced eviction proceeding. Such a scenario occurred in the case of Nunz Equities v. Mangan (2007). In that case, the tenant completely gutted her kitchen, and installed new cabinets, flooring and appliances without having obtained any permission from her landlord. The landlord, discovering the tenant’s work in her apartment, and not knowing what the tenant’s scope of that work would be, obtained a comprehensive, broadly-worded TRO in the Supreme Court, enjoining the tenant “from performing, or causing and/or allowing to be performed, any alterations, construction, and/or demolition work in the premises, and from committing further waste therein.”

Thereafter, the landlord commenced a holdover proceeding against the tenant based upon the unauthorized construction and demolition work in the apartment. The Court, however, held that the language of the TRO was inconsistent with the language of the Notice to Cure upon which the holdover proceeding was predicated. On the one hand, the TRO stopped the tenant from performing any further alterations within the premises. On the other hand, the Notice to Cure said that the tenant must “cure” the alterations work that was done. Thus, the Housing Court dismissed the holdover proceeding, stating as follows:

In other words, respondent [the tenant] was told by petitioner [the landlord] to put all of the removed cabinets, appliances, and plumbing back the way they had been, only to be told by the Court, three days later, at petitioner’s urging, that she was enjoined from taking such action.

A reasonable layperson confronted with the instant TRO would read it to mean that all work at the apartment must cease. When confronted with a landlord’s notice to cure and a contrary court order, a prudent individual would abide by the court order. Here, respondent was told to cure by the landlord and told not to cure by the Court. Petitioner’s TRO cut respondent’s cure period to three days, less than what was required under the Rent Stabilization Code. Therefore, this court finds that respondent was not given a 10-day opportunity to cure the alleged lease violations, and, thus, petitioner has not satisfied the requirements of Rent Stabilization Code (9 NYCRR) 2524.3 (a) and this proceeding must be dismissed.
On appeal, the Supreme Court, Appellate Term affirmed the Housing Court’s dismissal.
So what exactly should a landlord do in such a situation? A broadly worded TRO is still desirable, since that would stop whatever the tenant intends to do within the apartment. Yet, as we saw in the Nunz Equities matter, the TRO should not impinge upon the tenant’s ability to “cure” the alleged wrongful construction work. Parenthetically, it seems somewhat odd that the Court in the Nunz Equities case apparently considered the tenant’s unilateral restoration of the apartment to its former condition – no doubt entailing even more construction work without landlord supervision – to be the appropriate “cure” for her prior, unauthorized construction and demolition work, rather than landlord-supervised restoration work, which would insure the use of licensed contractors.

In any event, to avoid the outcome that occurred in the Nunz Equities case, the language of the TRO should explicitly state that nothing contained within the TRO is intended to affect the tenant’s obligation to “cure” a breach of the lease, as set forth in any contemporaneously served Notice to Cure, and that the TRO is served upon the tenant without prejudice to the service of the Notice to Cure.

Edward Alper, Esq. is the principal of the Law Offices of Edward Alper, and has practiced real estate litigation since 1982. He can be reached for consultation at (212) 359-9386 or ealper@alperlawfirm.com.

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