Q & A on Painting Requirements for Rent-Regulated Apartments

It’s difficult to keep track of the various painting requirements that apply to building owners. If you own a building with three or more apartments or own a one- or two-family building with a tenant-occupied apartment, you must comply with Sections 27-2013 and 27-2014 of the city’s Administrative Code. The city’s Department of Housing Preservation and Development (HPD) enforces these sections. In addition, if you own a building with rent-stabilized apartments, the Division of Housing and Community Renewal (DHCR) considers painting a required service that you must provide. And if you own a building with rent-controlled apartments, the DHCR may consider painting to be an “essential” service you must provide under certain circumstances.

If you don’t comply with HPD’s painting rules, HPD could hit you with a fine. Also, if you own a building with rent-stabilized or rent-controlled apartments, a tenant may file a reduction in service complaint with the DHCR, and you could get hit with a rent reduction if the DHCR rules that you didn’t meet your painting obligations.

To keep you on top of what you must do to meet the various painting requirements, here are the answers to six commonly asked questions.

Painting Public Hallways

Q Do I have to paint the public hallways in my building? If so, how often?

A Yes. Section 27-2013(a) of the Administrative Code requires you to paint or wallpaper all walls and ceilings in the building’s public areas whenever necessary to keep such surfaces sanitary.

If you don’t maintain the paint, you could face a rent reduction for a decrease in building-wide services. In one case, tenants complained of a reduction in building-wide services due to leak stains and peeling paint on the lobby ceiling and walls. The district rent administrator ruled for tenants and reduced their rents. The owner appealed and lost. The owner claimed that peeling paint and leak stains on the lobby ceiling and walls were minor conditions that didn’t warrant a rent reduction. But a DHCR inspection showed that the condition wasn’t isolated or minor, as there were peeling paint and stains in various parts of the building’s public areas [538 East 21st Street, August 2014].

Painting Exterior Window Frames and Sashes

Q Do I have to paint exterior window frames and sashes? If so, how often?

A Yes. Section 27-2014 of the code says that at least once every five years you must repaint the exterior window frames and sashes of all windows with one coat of exterior paint. HPD’s Division of Code Enforcement may order additional painting if it finds the work necessary. This five-year painting requirement doesn’t apply to window frames or sashes made of “atmospheric corrosion-resistant” metal.

Painting Fire Escapes

Q Do I have to paint my building’s fire escapes? If so, how often?

A Yes. Section 27-2014(b) of the code says that you must paint fire escapes with two coats of paint of contrasting colors (for example, black and white). If you’re installing new fire escapes, you must apply the first coat of paint before the fire escapes are erected and the second coat after they’re erected. Whenever a fire escape becomes corroded, you must scrape and repaint it with two coats of exterior paint of contrasting colors. These painting requirements don’t apply to fire escapes made of approved atmospheric corrosion-resistant metal.

The Fire Department takes the maintenance of your fire escapes seriously. Even if your apartment building was vacant and you were waiting for a permit to demolish the building, the Fire Department could issue a violation notice for failure to maintain fire escapes. This is what happened to one owner. The owner argued that it was unnecessary to maintain the fire escapes under such circumstances. He also claimed that it would be unduly burdensome for him to scrape, paint, and repair the fire escapes. The administrative law judge ruled against the owner and fined him $750.

The owner appealed and lost. Under Code Section 28-301.1, an owner is required to maintain all fire escapes in good working order. The Fire Department argued that there is no exemption from this responsibility for vacant, abandoned, or “soon to be demolished” buildings. It asserted that the safety of firefighters and the public is at risk where fire escapes are not maintained in vacant buildings [Owner of 301 West 46 St., August 2013].

Rent Increase for Painting Rent-Controlled Apartments

Q Am I entitled to collect a rent increase for painting a rent-controlled apartment for the first time? If so, must I follow any special procedure to collect the increase?

A Yes. Rent increases for painting for the “first time” are equal to 1/60th of the cost in buildings containing more than 35 apartments or 1/40th of the cost in buildings containing 35 apartments or fewer if you can show that the apartment wasn’t painted in the past 10 years. By showing this, you prove that painting wasn’t an essential service included in the rent.

But if the DHCR’s records show that painting was a service included in the rent, it could rule that you’re not entitled to the increase, even if the apartment hadn’t been painted in the past 10 years. Once you get the rent increase, you must repaint every three years.

File form with DHCR. Before you can start collecting the rent increase, you must fill out and file a special form with the DHCR called the “Owner’s Notice of a Rent Increase Based on Increased Services/New Furnishings/Equipment/Painting; and Tenant’s Statement of Consent” (DHCR Form RN-79b).

     > If tenant consents to increase. If the tenant consents to the increase, fill out Part A of the form. There’s a place for the tenant to sign to indicate her consent. You can then start collecting the rent increase once you file the form.

     > If tenant doesn’t consent to increase. If the tenant doesn’t consent to the increase, fill out Part B(3) of the form. Before you can start collecting the increase, you must wait for the DHCR to issue an order approving your right to collect it.

Keep records. If you’re seeking a rent increase be sure to pay by check and have detailed records of the work done. Also, discuss the total cost and rent increase implications before-hand with the tenant if the work surrounding the first-time painting is intensive. In one case, the DHCR limited the amount of the 1/40th rent increase for painting a rent-controlled apartment for the first time. The owner submitted a contract for the painting job with a price of $13,750. The tenant filed a complaint that this price was exorbitant, stating that there was no scraping, priming, and second coating as alleged and that an estimate from two painting contractors showed that the cost of an apartment like his should be between $2,700 and $2,940. The owner countered that the apartment was not professionally painted for 40 years and that there was much scraping, plastering, priming, and painting. Also, the tenant’s estimates were for mere paint-overs with two coats of paint.

The DHCR ultimately used the tenant’s estimates. The record showed that $13,750 was paid in cash and there were no other corroborative documentation such as invoices, receipts, and breakdown of labor, materials, other costs, and time-log for the project done. In addition, the owner and tenant did not originally discuss the total cost of the painting and implications of a rent increase based on this first-time painting [Proto, December 2013].

Rent Increase for Painting Rent-Stabilized Apartments

Q Is there a situation in which I am entitled to a rent increase for painting a rent-stabilized apartment?

A Yes, you may collect a rent increase for painting a rent-stabilized apartment if the painting was done along with related qualifying improvements. If you paint all or part of a rent-stabilized apartment in connection with and at the same time that you make other, related improvements that qualify for an improvements rent increase, you should be able to include the cost of the painting in the rent increase.

For example, the DHCR will let an owner include the cost of painting and wall repair work in a rent increase for kitchen renovation. But note that the painting must be done in connection with the qualifying improvement. For example, if the owner had also painted the living room, the cost of that painting very likely couldn’t have been included in the rent increase, because it wouldn’t have been done in connection with a qualifying improvement.

Honoring Tenants’ Requests for Special Colors

Q Can the tenant of a rent-stabilized or rent-controlled apartment demand that I paint the apartment a special color of the tenant’s choice?

A No, not if you never painted the apartment in the tenant’s color choice before. In this situation, you—not the tenant—can choose the color. You don’t have to paint the apartment in the tenant’s color choice, even if the tenant buys the paint. But you must paint in a specific color if you painted the apartment that color in the past.

In one case, a tenant tried to dictate the type of paint and exactly how it was to be applied. He wanted flat paint on the walls and ceilings with the wood trim in semi-gloss, but the owner refused to comply unless a fee was paid. The tenant’s service complaint was deemed to have been appropriately dismissed. The apartment was painted as required by law and the DHCR inspection confirmed this [Barkley, September 2006].

Negotiated extra fee. If a tenant requests a special color and you are willing to oblige, you can do so for a negotiated fee. This situation is detailed in an opinion letter in which the tenant paid the owner $500 for a different color. The letter stated that owners and tenant are at liberty to establish agreements allowing for apartment painting in colors other than off-white. Regardless of the color chosen, tenants are entitled to have the apartment painted every three years. The Rent Stabilization Code does not provide guidance as to the amount an owner may charge to have an apartment painted in a color other than the off-white standard. In this situation, since permission to paint the apartment a different color for a fee was given, such permission became a required service. In other words, the owner must paint the apartment in a color other than off-white if the tenant pays for it [DHCR Opin. Ltr. by Charles Goldstein, October 2003].