Brush Up on What's Required When Painting Apartments

If a rent-regulated tenant complains to the Division of Housing and Community Renewal (DHCR) about painting problems, such as peeling paint, in his apartment, you could get hit with a DHCR rent cut for reduced services.

If a rent-regulated tenant complains to the Division of Housing and Community Renewal (DHCR) about painting problems, such as peeling paint, in his apartment, you could get hit with a DHCR rent cut for reduced services.

It's tough to keep track of all the rules on painting a tenant's apartment. Owners of buildings with three or more apartments, and owners of one- or two-family buildings that contain a tenant-occupied apartment, must comply with Section 27-2013 of the Housing Maintenance Code. This law is enforced by the city's Department of Housing Preservation and Development (HPD). In addition, owners of rent-controlled and rent-stabilized apartments also must follow rules enforced by the DHCR.

Painting Law Requirements

Here's what you need to know about when and what painting you must do:

Paint every three years. You must either paint or cover the walls and ceilings of an apartment with wallpaper every three years. You needn't paint or paper every time a new tenant moves in, as long as you keep to a three-year painting schedule. It's your call on whether to paint or paper.

If walls become dirty in the meantime. If, through no fault of the tenant, the walls or ceilings of an apartment become covered with food or grease, or otherwise unsanitary, the HPD may order you to paint before the three-year period is up. If the tenant has made the walls or ceilings unsanitary, the tenant must repaint.

Postponement possible. The painting law says that you can postpone painting until five years have passed, if a tenant signs an agreement to that effect. The agreement must be made during the month before the three-year period between paintings ends. The agreement must be a separate contract and can't be included in a lease.

Type of paint. You may use any light-colored paint. Under the painting law, tenants have no right to dictate the type or color of paint used in their apartments. But check the rules in the section, below, on rent-controlled or rent-stabilized apartments, since these tenants may have a right to the same color or type of paint that you or a prior owner provided in the past.

Keep records for HPD to inspect. You must keep records showing when the apartments in your building were last painted and who performed the work. You don't have to file reports with this information, but the records must be available at the building for inspection by HPD.

There's no set format or layout for painting records. You may make a note of completed paint jobs in individual apartment files and include a copy of the painting contractor's invoice in the folder.

Special Rules for Rent-Regulated Tenants

In addition to the general requirements above, here are more rules that apply to painting apartments of rent-regulated tenants.

When special paint is required. The city's painting law says you can use any type of light-colored paint. But if you're dealing with a rent-controlled or rent-stabilized tenant, you may have to use a special type of paint (such as oil-based or semi-gloss) in one situation: if you or a prior owner used a special paint in the past.

In one case, a tenant complained of a reduction in services. The tenant had asked the owner to paint his apartment. After the owner did so, the tenant claimed that the owner didn't follow the tenant's specifications. The tenant claimed that he wanted flat paint on the walls and ceilings, and semi-gloss paint on the wood trim. He said the owner refused to grant his request unless he paid a fee. The District Rent Administrator ruled against the tenant. The inspection showed that the work was done in a lawful and workmanlike manner [Barkley, September 2006].

When special color is required. The same rule applies to special colors. If you never painted the apartment in the tenant's color choice before, you—not the tenant—can choose the color. You don't have to paint the apartment in the tenant's color choice, even if he buys the paint. But you must paint in a specific color if you painted the apartment in that color in the past.

You may want to allow a tenant to choose a color if the tenant pays for it. In a DHCR opinion letter from October 2003, a tenant paid an owner $500 to paint his apartment a different color. Previously, the owner painted the tenant's apartment off-white every three years. The tenant asked the DHCR if the owner could charge this $500 fee. In the letter, the DHCR said yes. The NYC Housing Maintenance Code required the owner to paint every three years. Typically, the color used is off-white. However, the Rent Stabilization Code didn't say anything about this question. The owner and tenant could agree that the owner would paint the tenant's apartment a different color for an additional fee. However, once the owner did so, the owner must continue to paint the apartment a different color as long as the tenant paid the fee [Goldstein, October 2003].

When to paint other surfaces. The painting law requires you to paint only the walls and ceilings inside a tenant's apartment. But what about other surfaces, such as doors or cabinets? You must paint these only if you did so in the past.

In one case, an owner was told that he must continue to paint the inside of the closets of a rent-controlled apartment. The owner painted the inside of the closets of the tenant's apartment three years earlier. He had never done so previously. The owner asked the DHCR if he was now required to continue painting inside the closets. In an opinion letter, the DHCR said yes. The owner must continue painting all surfaces that were previously painted, which now includes inside the tenant's closets [Goldstein, March 2002].

Increased rent for first-time painting. If the building's owner never painted a rent-controlled apartment, the Rent and Eviction Regulations do not require the owner to do so, and no rent reduction will be ordered against the owner for denial of such service. Where painting has not been an essential service for a rent-controlled apartment and the owner paints for the first time in order to comply with the requirements of the Housing Maintenance Code, the painting is considered to be an increase in services.

Upon completion of the painting, the owner may file an “Owner's Application for Air Conditioner Charges or for an Increase in Maximum Rent for Painting” (DHCR Form RN-79b, Part B) with the DHCR. The owner must provide evidence going back 10 years to establish that painting was not previously an essential service. Tenant consent is not necessary for such an increase because the owner is legally obligated to paint pursuant to the Housing Maintenance Code. But if you do get the tenant's consent to the rent increase, you may use Part A of the RN-79b form.

The Rent Regulation Reform Act of 1993 changes the amount an owner may collect for an increase in painting service. The previous increase of 10 percent of the rent has been changed to 1/40th of the cost incurred to paint the apartment. This increase of 1/40th is paid by the tenant monthly and becomes part of the maximum rent.

For example, in one case last year, an owner asked the DHCR to increase a rent-controlled tenant's rent based on painting. The owner claimed that painting wasn't a service included in the tenant's rent. The District Rent Administrator ruled for the owner and increased the tenant's rent by $167 per month. The tenant appealed and lost. The tenant claimed that painting was an essential service to be included in the rent. In any event, the tenant claimed that the rent increase was excessive. The DHCR ruled against the tenant. The DHCR's records didn't show that painting service was ever included in the tenant's maximum rent. So, under rent control regulations and DHCR practice, the owner was entitled to a rent increase. The owner also proved that it paid $9,700 for plastering and painting of the tenant's four-bedroom apartment, which also contained a kitchen, bathroom, entry foyer, living room, long hallway, and 10 windows. The owner reasonably claimed that $6,675 of that cost was for painting [Thompson, September 2010].

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