How to Handle Tenant Who Tries to Dictate Who Makes Repairs
When it comes to apartment repairs, some tenants may be highly opinionated about all aspects of how the work should be done. In one case, an apartment needed painting and plastering, but the tenant wouldn’t allow the owner’s employees access to her apartment. She demanded that they use her paint. But there wasn’t enough of her paint to cover her apartment, and moreover, the tenant hadn’t moved furniture to provide access for painting [888 Grand Concourse: DHCR Adm. Rev. Docket No. AT610016RT].
Tenants may also take issue with who does the work. Tenants may sometimes object to the employee or outside contractor you send to make repairs in their apartments. For example, they may think that the employee or contractor lacks the necessary skills to do the job, or that they could find someone better.
If this tenant filed a complaint for reduced services after vetoing your choice of contractor to do the repairs, will you get hit with a rent cut? No, it’s your right to choose who makes repairs. Without a very compelling reason, a tenant has to accept your designated repairperson.
In one case, an owner applied to the Division of Housing and Community Renewal (DHCR) to restore an apartment’s rent, which had been cut based on a finding of reduced services. The owner stated that it couldn’t make the needed repairs because the tenant wouldn’t let the owner’s employee into the apartment to do the work. The tenant admitted this, but claimed that the employee had done defective work in the past. The tenant wanted his own contractor to do the work at the owner’s expense. The DHCR restored the rent. It said that the tenant couldn’t dictate who would do the repairs, because “this is solely within the purview of the owner” [Biju Realty Co.: DHCR Adm. Rev. Docket No. EB410294RO].
Exception for ‘Compelling Reason’
If the tenant has a compelling reason for refusing access to a particular worker and can prove it, you’ll have to send someone else. For example, a tenant wouldn’t let the building’s super into her apartment to make repairs. The tenant claimed that, on an earlier occasion, the super had physically and verbally threatened her. She submitted a sworn statement from a neighbor who had witnessed the threat. The DHCR ruled that “under the extraordinary circumstances present in this case, the tenant’s denial of access to the superintendent was reasonable.” The owner should have sent another person to make the repairs [Jaime Associates: DHCR Adm. Rev. Docket No. EA110011RO].
In another case, an owner agreed to pay more than $2 million in fines after female tenants sued the owner for violating the Fair Housing Act based on charges that the landlord subjected the tenants to sexual harassment by the building super. The tenants claimed severe and repeated acts of harassment, including routine solicitation of sexual favors in exchange for housing benefits, unwanted verbal and physical sexual advances, and conditioning tenancy terms on granting sexual favors. They claimed that the landlord was aware of the super's conduct and allowed it to continue [United States v. Katz, 2011 WL 2175787]. Under these circumstances, these tenants would have been justified in denying the super entry into their apartment.
Head Off Complaint with Letter
Suppose a tenant requests repairs to his apartment. You send someone, but the tenant won’t let that person in. To head off a complaint from the tenant to the DHCR about reduced services, try sending the tenant a letter. In it, explain that the DHCR has ruled that a tenant can’t dictate who makes repairs. Also point out any paragraphs in the lease that say the tenant must provide access for repairs. We’ve drafted a Model Letter: Explain Owner's Right to Select Repairperson, below, to illustrate this point.
If Tenant Complains Anyway
Suppose the tenant goes ahead, despite your letter, and files a service complaint with the DHCR. The tenant asks the DHCR for a rent cut based on reduced services because you wouldn’t send over another person to make the needed repairs. Unfortunately, you’ll now have to go through a paperwork hassle to prove to the DHCR that the tenant has unreasonably denied access for repairs.
Once a tenant complains to the DHCR about reduced services, the agency requires you to give the tenant two chances to let your chosen worker into the apartment. Then, when you submit your answer to the tenant’s complaint, you must prove that you gave the tenant those two chances and were denied access. Since you get only a limited time to respond to a tenant’s complaint of reduced services, you’ll probably need to ask the DHCR for additional time to submit your answer. At all times, the DHCR may grant an owner a reasonable extension of time to respond. Here’s how you should proceed:
1. Send tenant letters arranging access dates. You must first send the tenant a letter attempting to arrange an access date. It must be sent at least eight days before the access date you propose. It must also be mailed by certified mail, return receipt requested. If the tenant doesn’t respond to this letter, you must send a second one by certified mail, return receipt requested.
2. Answer tenant's complaint. Explain your access attempts in the answer you submit to the DHCR responding to the tenant's service complaint. If the tenant has rejected both of your attempts, your answer should ask the DHCR to dismiss the tenant's complaint because you've been denied access. We've drafted a Model Letter: Service Complaint Answer When Tenant Denies Access (see link below). As proof, you should attach copies of the access letters to your answer.
Upon receipt of the answer, the DHCR may direct an inspector to accompany the owner or the owner's agent to the tenant’s apartment to determine whether such access is being provided. The tenant's service complaint will be denied or the owner's rent restoration application will be granted, where a tenant fails to provide access at the time arranged by the DHCR for an inspection.
Editor’s Note: Since the Rent Code Amendments of 2014 went into effect, a tenant isn’t required to give prior written notice to the owner of decreased service in an individual apartment or in the building. Although the DHCR recommends that a tenant who experiences a decreased service in an individual apartment or in the building first contact the owner in writing, the written notice is no longer a requirement.
For emergency conditions, prior written notice to the owner has never been required before filing a complaint with the DHCR. These emergency conditions are: vacate order, fire, no water apartment-wide, no operable toilet, collapsed or collapsing ceiling or walls, collapsing floor, no heat/hot water apartment-wide (violation required), broken or inoperative apartment front door lock, all elevators inoperable, no electricity apartment-wide, window to fire escape doesn’t open, water leak (cascading water, soaking electrical fixtures), window-glass broken (not cracked), broken/unusable fire escapes, and air conditioner broken (summer season). Complaints to the DHCR on the appropriate DHCR form that cite any of these emergency conditions are treated as a first priority and are processed as quickly as possible.