Clear Outstanding Heat & Hot Water Violations to Avoid Rent Cuts
As New York City deals with winter storms and temperature swings, heat and hot water complaints are likely to be the most common type of service complaint you’ll face. A tenant or group of tenants may file a complaint with HPD and may also seek a rent reduction through the Division of Housing and Community Renewal (DHCR) for inadequate heat and hot water in the apartment or building. If you don’t stay on top of heat and hot water service complaints, you may face rent cuts.
We’ll review heat and hot water requirements for owners, how HPD responds to heat and hot water complaints, and how the DHCR decides whether to cut rent for heat and hot water service cases.
‘Heat Season’ Requirements
Building owners are legally required to provide heat and hot water to their tenants. There’s no off-season for hot water. Hot water must be provided 365 days per year at a constant minimum temperature of 120 degrees Fahrenheit. If a tub or shower is equipped with an anti-scald valve that prevents the hot water temperature from exceeding 120 degrees, the minimum hot water temperature for that tub or shower is 110 degrees.
Heat, however, must be provided between Oct. 1 and May 31, or “Heat Season,” under the following conditions:
Day. Between the hours of 6 a.m. and 10 p.m., whenever the outside temperature falls below 55 degrees Fahrenheit, you must keep tenants’ apartments at a temperature of at least 68 degrees Fahrenheit.
Night. Between 10 p.m. and 6 a.m., you must keep apartments at a temperature of at least 62 degrees Fahrenheit. There is no outside temperature requirement for this time period.
The city encourages tenants without heat or hot water to contact the owner or managing agent first. If tenants feel the owner is unresponsive, they can file a complaint with 311. At this point, HPD will try to contact the managing agent to let them know that a complaint has been filed and to see whether service has been restored.
If service hasn’t been restored or HPD can’t reach the managing agent, an HPD inspector will go to the building to verify the complaint and issue a Notice of Violation. Heat and hot water violations are categorized as Class C, the most severe class of violations. The Class C violation for heat and water will instruct the managing agent to immediately repair the condition.
The financial penalties imposed for heat and hot water violations are steep. It costs $250 to $500 dollars per day for each violation from and including the date the notice is posted at the building until the date the violation is corrected. And the penalties rise to $500 to $1,000 per day for each subsequent violation at the same building that occurs within two consecutive calendar years or, in the case of Housing Maintenance Code (HMC) Section 27-2029(a) (hot water), during two consecutive periods of Oct. 1 through May 31 (heat).
Example: In one case where HPD sued an owner seeking civil penalties for failure to provide heat and hot water, the owner tried to argue that his “second season” heat and hot water violation notice was defective. HMC Section 27-2115(k)(ii) requires owners to restore heat or hot water within 24 hours of affixing of the violation notice. The subsequent violation notice stated that the condition “must be corrected immediately,” but the owner argued that the notice didn’t state that the condition must be corrected within 24 hours. The court ruled that the owner must pay the higher penalty of $750 for a subsequent violation. The HMC section cited in the notice notes that the prompt repair and submission of the $250 isn’t available for a second season violation [HPD v. Himed, March 2019].
If the owner doesn’t certify that the condition was corrected, the violation remains open on the building record. If an owner fails to restore heat and hot water after receiving a violation, HPD’s Emergency Repair Program (ERP) may contract with private companies to restore essential services and bill the owner for the cost of the repairs, plus related fees. The city is subject to laws governing procurement, contracting, and wages that may make such work significantly more expensive than the price owners could obtain themselves. If the property owner fails to pay, the city will file a tax lien against the property. The tax lien will bear interest and may be sold and/or foreclosed through the city’s Tax Lien Sale to collect the amount owed.
DHCR Rent Reductions
The DHCR is authorized to reduce the rent of any rent-regulated apartment in New York City when required heat and hot water services aren’t maintained. Tenants may file a “Failure To Provide Heat And/Or Hot Water — Tenant Application For Rent Reduction” (DHCR Form HHW-1). The complaint for an individual apartment may also be submitted online at https://www.hcr.ny.gov. If more than one tenant wishes to file a complaint, the tenants must attach a schedule to the HHW-1 form or file an “Application For A Rent Reduction Based Upon Decreased Building-Wide Service(s)” (DHCR Form RA-84).
Applications based on lack of adequate heat or hot water must be accompanied by a report from the appropriate city agency finding the lack of adequate heat or hot water. The DHCR will rely on outstanding HPD-issued heat and hot water violations to decide whether a rent reduction will be ordered. If there’s an outstanding violation on record for the apartment or apartments involved in the service complaint when the district rent administrator (DRA) issues its order on the complaint, the order will go against you and you’ll be barred from collecting any additional rent increases until the service is restored. If a tenant receives a rent reduction from the DHCR and receives another abatement or a rent credit because of the same conditions, the tenant can’t get both benefits at the same time.
Example: In one case, a rent-stabilized tenant complained to the DHCR of a reduction in required services based on no heat. HPD records showed a violation had been issued for inadequate heat throughout the building. The owner couldn’t show that the HPD violation had been cured. Rather, the owner argued that the violation was still outstanding but applied only to a different apartment, not the tenant’s apartment. The DRA ruled for tenant and reduced his rent.
The owner later filed an application to restore rent, arguing again that the heat violation didn’t involve a building-wide condition and applied only to a different apartment. The DRA ruled against the owner again since that HPD violation was still open and the violation supported a finding that there was no heat in the entire building and inadequate heat in tenant’s apartment [Dov Land USA LLC: DHCR Adm. Rev. Docket No. HQ210038RO, August 2020].
Example: In another case, the DHCR denied a tenant’s request for a rent reduction based on inadequate heat in his apartment. The owner had answered the complaint, stating that it corrected an insufficient heat condition in the bedroom that tenant complained about. Also, HPD records showed no outstanding violations for inadequate heat in the apartment. The tenant had complained to HPD about heat, but no violation was found [Truong: DHCR Adm. Rev. Docket No. HP210031RT, July 2020].
The DHCR can order a rent reduction for a heat and hot water violation even if the owner provides alternative service.
Example: In one instance, a rent-stabilized tenant complained to the DHCR that he didn’t have heat or hot water in his apartment. The tenant submitted a copy of an outstanding heat and hot water violation issued by HPD. The owner advised the DRA that it needed to replace the oil-burning furnace in the building with eight independent gas furnaces and hot water tanks. During this process, it provided tenants with 18 space heaters and eight electric hot plates that it bought and distributed to every apartment. The owner also installed an electric water heater to ensure continued receipt of hot water as soon as it obtained a permit to do so.
The DHCR wasn’t swayed and ruled that the DRA correctly reduced tenant’s rent based on the outstanding HPD violation [Zack Maxie, LLC: DHCR Adm. Rev. Docket No. GU210028RO, November 2019].
Clearing Outstanding HPD Violations
To avoid losing your case based on an outstanding HPD heat and hot water violation, check for these violations whenever you face a complaint for reduced services based on a claim of inadequate heat and hot water. You can check for violations on HPD Online at https://www1.nyc.gov/site/hpd/about/hpd-online.page.
If you discover any outstanding heat and hot water violations, make sure that you correct them, and if the deadline for certification hasn’t passed, certify their correction with HPD. Then when you answer the tenant’s DHCR complaint, acknowledge any heat and hot water violations and submit proof that you’ve corrected them, even if the tenant hasn’t raised this as an issue. Chances are, if there are heat and hot water violations on your building’s record, the DHCR will eventually discover them. So it’s best to acknowledge their existence and show that you’ve corrected them.
Example: You corrected a heat and hot water violation for the apartment where the complaining tenant lives, and certified its correction with HPD. Your answer to the complaint might say something like this:
Although HPD issued a heat and hot water violation for this apartment, I corrected this violation by repairing the radiator in the living room and certified correction of this violation with HPD. Attached are copies of the invoice for the repair to the radiator and the certification of correction I filed with HPD.