How to Deal with Repeated Service Complaints by Tenants
In the March 2012 issue, we discussed how to overcome stall tactics used by tenants to delay rent restoration orders. Oftentimes, tenants will try to introduce new service complaints for defective conditions after the Division of Housing and Community Renewal (DHCR) has issued a rent cut, at the time you've filed an application with the DHCR to reinstate the original rent.
Here's another complaint-related problem owners often face: tenants who repeatedly file service complaints with the DHCR at the outset to gain a rent reduction. You may have a tenant who files complaints about different things regularly. One month, it's a leaky faucet. Two months later, the refrigerator door creaks or the refrigerator is somehow inadequate. Meanwhile, the tenant's previously filed complaints are still pending. Or you may have a tenant who repeatedly complains about the same thing. Or the tenant may have filed a complaint about his apartment and then joined in a building-wide service complaint with other tenants.
These chronic complaint filers are troublesome. Not only do you have to keep track of all the paperwork that their complaints generate, you must also take steps to file an answer to each complaint with the DHCR. If a complaint falls through the cracks and becomes neglected, or if you don't respond to the complaints systematically and thoroughly, you're sure to end up with a rent cut for reduced services.
TAKE SEVEN STEPS WHEN DEALING WITH REPEATED COMPLAINTS
Here are seven steps to help you handle repeated service complaints from a tenant and improve your odds of preventing rent cuts.
Step 1: Keep Track of Service Complaints
It's important to keep track of every service complaint a tenant reports to you and to the DHCR. If a tenant intends to file a complaint with the DHCR to obtain a rent reduction, the tenant is required to give 10 to 60 days' prior written notice of conditions to the owner before filing a complaint, says attorney Peter Schwartz of Graubard Miller. Therefore, if you receive written notice of a service complaint from a tenant rather than a phone call, this may be a good indication that the tenant intends to seek a rent reduction with the DHCR.
In one case, a tenant claimed that there was no cooking gas and that the walls in her kitchen had been torn up and not sealed. But she didn't send a letter to the owner before filing the complaint. The DHCR eventually ruled that the district rent administrator (DRA) had properly dismissed the tenant's complaint because she hadn't sent the owner a letter with proof of mailing at least 10 days before filing the complaint with the DHCR [Zigars, January 2007].
The tenant's letter may provide you with an opportunity to correct a problem before the tenant files a complaint. In another case, a tenant complained of inadequate hot water. The DRA ruled for the tenant and reduced his rent. The owner won the appeal, however, because the hot-water problem had been corrected by the time the tenant filed his complaint. And it lasted only a total of four days. Because the owner had corrected the problem before getting notice of the tenant's DHCR complaint and within two days of getting an HPD violation, the DRA shouldn't have reduced the tenant's rent [Ville de Port, Inc., September 2003].
After sending a letter, if the tenant feels that his complaint wasn't adequately addressed by you or your staff, the tenant will then attach a copy of the letter with proof of mailing or delivery to the correct DHCR complaint form and file them with the DHCR. The DHCR then screens and dockets these applications and sends the tenant an acknowledgement with the complaint/docket number. A copy of the tenant's complaint is also sent at this time to the owner, and the owner has 45 days in which to respond (five days for vacate orders and fires). If the owner's answer is relevant to the rent reduction determination, the DHCR may send a copy to the tenant, who has 21 days from receiving the owner's answer to respond to the DHCR. In the alternative, however, the DHCR may schedule an inspection.
To help you keep track of service complaints, we've prepared two forms. Our Model Form: Individual Service Complaint Tracking Sheet helps you keep track of a tenant's individual service complaints, which are service complaints about the tenant's apartment. You'll need a separate form for each tenant. Our Model Form: Building-Wide Service Complaint Tracking Sheet helps you keep track of building-wide service complaints. Use one form for each complaint.
Both forms have space to list the date you received the tenant letter, the complaint docket number, the date the complaint was filed, the date you got a copy of the complaint, the date your answer was filed, and the outcome of the complaint. There's also space to enter what service problems the complaint is alleging. And you also can note when a complaint duplicates—or has allegations that overlap—a prior complaint filed by the same tenant or tenants.
Filling in these forms should help you avoid confusion and disorganization in handling service complaints, which could lead to your failure to answer a complaint properly. It could also help you if you get hit with a rent cut for decreased services. The rent cut should take effect on the first rent payment date after you got a copy of the tenant's complaint from the DHCR. You'll know if the DHCR puts the rent cut into effect too soon, and you can appeal or request reconsideration.
Step 2: Answer Each Complaint
Make sure you answer completely and in detail each service complaint a tenant files with the DHCR. “The Rent Stabilization Code provides that a tenant may apply for reduction of the legal regulated rent to the level in effect prior to the most recent guidelines adjustment,” states Schwartz. Therefore, regardless of the number of issues in any complaint or multiple complaints that the DHCR finds as a service reduction, the penalty is the same. However, notes Schwartz, the difficulty for an owner is that the owner must respond to each issue and to each complaint. “If multiple orders are issued reducing the rent, the owner would have to file and obtain orders restoring the rent for each of the rent reduction orders,” says Schwartz.
You may be tempted to ignore complaints that cover the same items the tenant complained about in another service complaint. If you do, the DHCR may rule for the tenant in the unanswered complaint, even though it duplicates one you've already answered. You also shouldn't ignore a complaint because the tenant filed a previous service complaint and lost. This applies whether the tenant complains about the same or different defective conditions. The DHCR can order a rent cut if the tenant complains again and a DHCR inspector finds that defective conditions exist.
For example, when a rent-stabilized tenant complained of a reduction in services based on leaks in his apartment hall ceiling, the DRA ruled against the tenant, based on an inspection showing no leaks. The tenant appealed and lost. The tenant claimed that there were new leaks in the same area. But at the time of the inspection, there was no decrease in service. Because the new leaks weren't part of the tenant's initial complaint, the tenant could file a new complaint based on the new leaks [Korobek, July 2010].
Step 3: Attach Previous Answers
When you answer a complaint that duplicates or overlaps with another complaint that you've already answered, you should attach your previous answer to your new response. This shows the DHCR— and establishes a record—that the tenant is filing the same complaint repeatedly.
Step 4: Attach Previous Inspection Reports
You may have requested and gotten a copy of the DHCR inspection report issued for one of the tenant's previous service complaints. You may be able to use that inspection report to your advantage in fighting the tenant's current complaint. If the inspection report from the previous complaint shows that the alleged defective conditions don't exist and the tenant is now complaining about those same items, you can use the inspection report as evidence that the tenant's complaint is unfounded.
If the inspection took place about the same time as the tenant's current complaint, the DHCR may not bother conducting another inspection and will rule in your favor. To get an inspection report from the DHCR, you must file a “Request for Access to Public Records” (Foil-1, 9/09), commonly referred to as a Freedom Of Information Law (FOIL) request. In your FOIL request, ask for the inspection report and give the docket number of the complaint. The FOIL request form is available from the DHCR Web site and should be sent to DHCR, Gertz Plaza, 92-31 Union Hall St., Jamaica, NY 11433.
You may also file a FOIL request by email. The Office of Rent Administration (ORA) will accept most Requests for Records by email if the identity of the requester is currently on file with ORA's database. You can file a Request for Records by email, at ORAFOIL@nyshcr.org.
Step 5: Get Complaints Consolidated
The DHCR has the authority to consolidate complaints, says Schwartz. When complaints are consolidated, the DHCR considers all issues together and issues one decision. You may be able to get the DHCR to consolidate a tenant's individual apartment complaints into one case or consolidate cases where several tenants have raised the same problem in separate building-wide service complaints.
Consolidation offers these advantages:
Once it's granted, you'll cut down on your paperwork.
You'll avoid multiple DHCR decisions that may contradict one another. For example, the DRA who processes one complaint may find there's no decrease in service, while another DRA may rule there is a decrease in service and order a rent cut.
You'll avoid multiple service inspections. The DHCR conducts an inspection each time a tenant files a complaint. By consolidating the complaints, you should be able to avoid multiple inspections involving the same service complaint.
But don't seek consolidation in these three situations:
1. A tenant files an individual complaint and joins in a building-wide service complaint;
2. Different tenants file separate building-wide service complaints that raise different problems; or
3. Tenants in different buildings in a multi-building complex file separate complaints.
Consolidation in the first two situations might bolster an otherwise weak complaint by lumping together a lot of miscellaneous items. In the third situation, you run the risk of getting a rent cut for all the buildings for a problem that exists in just one building.
To get complaints consolidated, write to the DRA who's in charge of processing the complaints and ask that the complaints be consolidated. In your request:
List the docket numbers of the complaints. The docket number appears on the copy of the tenant's complaint that the DHCR sends to you.
State when the complaints were filed. The filing date should be stamped on the complaint.
List what is alleged in each complaint. Point out complaints that are overlapping or duplicative.
For individual service complaints, indicate that the same tenant has filed repeated service complaints. State why you feel the complaints should be consolidated. If they are duplicative or overlapping, state that the complaints involve the same “issue of fact.” If the complaints aren't duplicative or don't overlap, state that they all involve services in the tenant's apartment. Point out, if you can, that the complaints were filed within a short time of each other.
For building-wide complaints, point out that different tenants have filed separate building-wide complaints about the same service item. State that you feel the complaints should be consolidated because they involve the same “issue of fact.”
Argue that consolidation of the complaints will save the DHCR time in processing and lead to a faster resolution of the dispute for both you and the tenant.
Be sure to keep on top of your request. If you don't get a response, contact the DRA again. Most important, don't wait for the DHCR to grant your consolidation request. File separate answers for each complaint.
You can use our Model Letter: Request DHCR Consolidation of Building-Wide Complaints and our Model Letter: Request DHCR Consolidation of Individual Apartment Complaints to guide your DHCR requests for consolidation.
Step 6: Avoid Multiple Rent Cuts
Make sure you don't get more than one rent cut for the same decrease in service condition. Here are the rules and steps you should take for rent-stabilized and rent-controlled tenants:
For rent-stabilized tenants. If the DHCR finds a decrease in service for a tenant, it will cut the tenant's rent by the guidelines increase in effect when the tenant filed the complaint. But, as mentioned before, the tenant is entitled to only one rent cut at a time. It doesn't matter if it's the same or a different problem. If a rent cut for a prior complaint is still in effect, the tenant can't get an additional rent cut. But note that you won't be able to get the rent restored to the full amount until you've corrected all of the problems.
If a rent-stabilized tenant is already getting a rent cut based on a prior service complaint, either individual or building-wide, and then complains of reduced services, tell this to the DRA in your answer to the tenant's current complaint. Refer to the docket number of the DRA order that cut the rent. For example, your answer might say something like this:
The tenant should not get a rent cut for reduced services. The tenant is already getting a rent cut for reduced services based on DRA order no. 12345 issued Jan. 2, 2012 (copy enclosed). Pursuant to Rent Stabilization Code (9 NYCRR) §2523.4(a)(1), the tenant is entitled to only one rent cut at a time.
For rent-controlled tenants. If the DHCR finds a decrease in services, it will cut the rent by a specific dollar amount. For example, a rent-controlled tenant receives a rent reduction order for a broken window on March 15, 2012. Her maximum collectible rent (MCR) is $724. If the order states the rent reduction is for $8, Then on April 1, 2012, the tenant's rent will be reduced to $716 ($724 - $8). There is no retroactivity, and she isn't owed a refund for previous months.
The tenant can't get two rent cuts at the same time for the same condition. But the DHCR can order separate rent cuts for different conditions. If a rent-controlled tenant complains of reduced services based on an item for which he's already getting a rent cut, point this out to the DRA in your answer. Refer to the docket number of the DRA order that cut the rent. For example, suppose the tenant is getting a $4 per month rent cut for a defective stove, and the tenant then files another complaint about the stove. Your answer might say something like this:
The DRA should not reduce the rent based on the defective stove. The tenant is already getting a rent cut for this item pursuant to DRA order no. 12345 issued Jan. 2, 2012 (copy enclosed). In an opinion letter by Charles Goldstein dated Oct. 18, 2002, this agency has stated that a tenant does not qualify for a second rent reduction order for the same service issue because the tenant continues to receive the benefit of the standing rent reduction order.
Step 7: Consider Eviction for Chronic Filer of Groundless Complaints
If a tenant is repeatedly filing groundless complaints, consider seeking an eviction on the basis of nuisance. In one recent case, an owner was able to evict a problem tenant for continual complaints.
The owner sued to evict the tenant for creating a nuisance. The owner was able to show that the tenant repeatedly filed complaints against the owner with the DHCR and the Department of Housing Preservation and Development (HPD). The tenant also started a New York Civil Court—Housing Part proceeding against the owner, which resulted in the placement of violations for conditions in the tenant's apartment. The tenant then refused to allow the owner, the DHCR, and court personnel access to the apartment to inspect and repair conditions. This conduct continued after the owner started the nuisance holdover proceedings. The owner claimed that no trial was needed and asked the court to rule in its favor based on its documentation of the tenant's actions. The court initially ruled against the owner, but the owner appealed and won. The owner proved that the tenant had created a nuisance, and there was no question of fact that required a trial [Pefko Realty LLC v. Nissim, January 2012].