Painting Requirements of Rent-Controlled Apartments with Possible Asbestos

Q Our only rent-controlled tenant went to a local hardware store for a consultation regarding the replacement of her approximately 45-year-old hard wood floor. The tenant claims that the salesperson found out that there’s asbestos in the floor. She gave us the contact details of this person, but when we called him it turned out that he doesn’t work there anymore. A co-worker from the hardware store stated that they do not and cannot find out if there is asbestos in a floor.

The tenant already lived there before we bought the building in 1985. And the tenant is threatening to call HPD. In addition, from time to time the tenant wants us to do renovations in her apartment such as painting, and now she’d like us to replace the flooring. The way we understand the law is that you have to paint a rent-controlled apartment only if you did so in the past. As we have never painted her apartment, we refuse to paint it now. What should we do?

A Since the painting of the rent-controlled apartment was never done by this owner, since at least 1985, and if there is no proof that the owner ever provided painting as an essential service, the owner is not required to paint and the DHCR will not issue a rent reduction order, says New York attorney Bill Neville of Mitofsky Shapiro Neville & Hazen LLP.

Where painting has not been an essential service for a rent-controlled apartment and the owner paints to comply with the requirements of the Housing Maintenance Code or a court order, the painting is considered to be an increase in services (individual apartment improvement), says Neville.

Upon completion of the initial painting, the owner may file for an increase in rent with the DHCR based on 1/40th (35 or fewer apartments) or 1/60th (more than 35 apartments) of the cost of the initial painting. The owner would have to paint every three years after that. Tenant consent is not required for this application, but if it is obtained, the application will probably be granted more quickly. The owner would have to provide evidence going back 10 years to establish that painting was not previously an essential service.

With regards to asbestos, Neville suggests that the owner contact an asbestos expert. The expert may verify that if asbestos is encapsulated, it can be left alone. “I am not sure how qualified an HPD inspector is to post a violation for asbestos. I can’t recall ever seeing an HPD violation for that. It may fall under the jurisdiction of the Department of Buildings,” says Neville. For safety and liability purposes, the owner would want to know if there is asbestos that is a danger, he adds. If it is a danger, it would be in the owner’s interest to take remedial steps using a professional.