How to Prompt Tenants to Give Access for MCI Projects
If you're planning a major capital improvement (MCI) in your building this summer, you may need access to a tenant's apartment to get the job done. For example, you may be installing new windows in the building, and to finish this project you'll need access to each apartment so that your contractor can remove the old windows and install the new ones.
If one or more tenants won't give you or your contractor access, it could interfere with your ability to make the improvement and get an MCI rent hike from the Division of Housing and Community Renewal (DHCR). Or the tenants may be planning some sort of appeal to an MCI rent hike, claiming that the work wasn't done properly or that the work in their apartments is incomplete. Without access, the DHCR may find that the work wasn't performed building-wide and so doesn't qualify as an MCI. Or the DHCR may grant the rent hike, but say that you can't collect it from those tenants whose apartments you couldn't get access to.
That's why it's important for you to take immediate action against tenants who don't allow access—and get them to provide it as soon as possible.
Five Steps to Getting Access
Here are five steps that can help you convince a tenant to give you access. To help you implement these steps, well also give you Model Letters: Request Access to Tenant's Apartment to Complete MCI Project.
Step #1: Check lease. This step is critical, warns New York attorney Peter Schwartz. To have the most leverage with a reluctant tenant, your lease must allow you to get access for the purpose of making improvements or changes to the apartment. Look for phrases that give you the right to make “improvements” or “to make changes Owner thinks are necessary.” If your lease allows you access only to make repairs, it may not be enough.
If your lease doesn't require the tenant to allow access for improvements, certain city and state laws may help you. Section 2524.3 of the Rent Stabilization Code (RSC) says that you can evict a tenant who denies access for an improvement “required by law or authorized by DHCR.” Section 27-2008 of the city's Administrative Code has a similar provision. It says that tenants can't refuse to allow the owner to enter the tenant's apartment to make improvements “required by this code or other law.”
If you're making MCIs that are legally required, you could try to convince the tenant to provide access by pointing to these laws. For example, if you're making an MCI to correct a violation that you got from a city agency, this would qualify as an improvement required by law. Also, an improvement that relates to a service you're required to provide to tenants may qualify. If you're not sure whether your improvement is required by law, speak to your attorney.
Step #2: Call or visit tenant. Before you spend time and money on an eviction lawsuit, try to get a tenant who so far has been uncooperative to voluntarily provide access. Call or visit the tenant or have your contractor do it to set up a time for getting access for the improvements. If you agree on a time, send a letter confirming the appointment.
Step #3: Send polite letter. If you can't reach the tenant at home or by phone, write a letter asking for access. The letter should be polite but firm. You can adapt our polite letter to fit your particular situation.
Step #4: Send contractor. Send your contractor to the apartment at the scheduled date and time, even if the tenant doesn't respond to your letter.
Step #5: Send get-tough letter. What if the tenant doesn't give your contractor access or isn't home when the contractor shows up at the scheduled time? You'll have to get tough. Send a second, more forceful letter, like our get-tough letter. If your lease has a clause giving you the right to get access to make improvements, your letter should note the date and time the contractor showed up and couldn't get into the apartment and tell the tenant that he's violating his lease.
If your lease doesn't have a clause allowing you the right to access an apartment to make improvements and your improvement is required by law, you can still use our get-tough letter. But instead of pointing out the lease clause, you should point out the relevant sections of the RSC and Administrative Code.
When you send the letters, make sure to get and keep some kind of proof that you sent them, suggests Schwartz. For example, if you send the letters by certified mail, return receipt requested, keep a copy of the return receipt signed by the tenant. Or you can get a certificate of mailing from the post office and keep a copy of that. You can then use this as evidence that you sent the letters to the tenant when you submit your MCI application to the DHCR.
Point Out Access Problem in MCI Application
If you can't get access to some apartments even after sending the get-tough letter, point out the access problem in your MCI application. Attach copies of the letters you sent to the tenant along with the proof that they were sent. It's better to explain this problem to the DHCR up front and show that you tried to get access to make the improvement. This will help you avoid having your entire application delayed or denied because the tenant didn't allow access. Also, point out that you've already bought the materials that are supposed to be installed in the tenant's apartment, and that you're ready and able to make the installation as soon as the tenant provides access.
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