Avoid Delays During Nonpayment Proceedings with Good Document Preparation

When you hire an attorney to start a nonpayment case in housing court against a tenant, you'll want to get it resolved as quickly as possible. To make this happen, it's important to give your attorney all the information she needs right from the start. Otherwise you could face court delays or have your nonpayment case dismissed.

You shouldn't rely on your attorney to ask you for all the relevant documents. Attorneys who charge a flat fee may be handling many nonpayment cases at once and may not spend the time to get needed documents from you. It's up to you to make sure your attorney has those documents. And if you're paying your attorney by the hour, supplying the needed documents in advance can prevent delays and save on attorney's fees.

“The attorney and client should work together to have these documents ready in advance of the court date so that the attorney can answer ‘Ready’ and get sent to trial,” notes attorney Andrew Bittens of Kucker and Bruh LLP. To help you convey all the necessary documents and information your attorney will need to adequately represent you, we'll explain what documents you should have on hand and give you a Documents Checklist for Nonpayment Cases that you can photocopy and use to identify the needed information and check off the documents you gather.

Initial Discussion with Attorney

“The attorney needs to have clear knowledge of the regulatory status of the apartment,” says attorney Niles Welikson of Horing Welikson and Rosen PC. The status of the nonpaying tenant's apartment, whether it's rent stabilized, rent controlled, or deregulated, will dictate the types of documents the attorney will need to handle your nonpayment case. “If the apartment is deregulated, the attorney will need to know the reason why,” adds Welikson.

The owner also needs to know if a J-51 benefit period will apply to an apartment. This may affect whether the particular apartment is rent regulated. “The Roberts v. Tishman Speyer decision has been held to be retroactive, so that if the owner had believed an apartment was deregulated based upon high rent and vacancy, that apartment would nevertheless remain stabilized, at least through the benefit period, and could be regulated beyond that in the absence of J-51 riders attached to each vacancy and renewal lease,” says Welikson.

What Documents to Give Attorney

You should provide your attorney with the following documents where applicable:

Original or certified copy of building deed. Give your attorney an original or certified copy of the building's deed.

⧫ Why needed. Your attorney needs the deed to prove that you own the building where the tenant lives. If you don't have the original deed, you'll need to get a “certified” copy. A certified copy has a stamp or mark that verifies that the copy is a true reproduction of the original. Generally, copies aren't admissible in court unless they're certified.

You can get a certified copy of your building's deed from the city register's office in the borough in which the building is located.

Original lease and last lease renewal. Your attorney will need to see the original lease you had with the tenant as well as the latest lease renewal. Along with the certified deed, the lease renewal shows and establishes a contractual relationship with the tenant, notes Bittens. The lease and lease renewal also proves the rental rate, he adds.

If you don't have the original lease and lease renewals, your attorney will need to know why. Our checklist sets aside a space for that information.

⧫ Why needed. Your attorney needs the lease for three important reasons. First, it tells the attorney the names of the building's owner and the tenant as written on the lease so that she can name the proper parties in the legal papers for the nonpayment proceeding.

Second, it lets the attorney see the notice provisions of your lease. This is important because the attorney can check that the rent demand you've sent to the tenant complies with the lease's notice requirements.

State law requires that you send the tenant a written rent demand or orally demand the rent. Either way, the rent demand must give the tenant at least three days to pay the rent before you can start a court proceeding. But the notice provisions of your lease may require you to give the tenant more time (for example, five or 10 days) or require you to give a written rent demand. If the lease provisions are stricter than the law, you must comply with the lease. If you've left it to your attorney to send the rent demand to the tenant, she'll still need to know what the lease requires.

Third, your attorney needs the original lease and any lease renewals for the court case itself. Copies may not be accepted by the housing court. If originals aren't available, many judges require an owner to show that the copies were made and maintained in the normal course of business, and to explain the absence of the original leases. So it's important for your attorney to know if and why the original leases and lease renewals are missing.

Copies of any side agreements with tenant. If you have any written agreements with the tenant, make sure to give your attorney a copy. For example, say you agreed in writing to give the tenant a rent abatement because of repairs needed in the apartment. You must give your attorney a copy of that agreement.

⧫ Why needed. A side agreement with the tenant may change how much rent the tenant owes you. If you ask for an amount of rent that you're not entitled to in your nonpayment case, this can make your legal papers defective and delay your case.

Copies of letters to or from tenant. Give your attorney copies of any letters between you and your tenant.

⧫ Why needed. These documents may be helpful if your case goes to court, says Welikson. Your attorney must see letters from the tenant to determine whether the tenant has a reason for not paying the rent. For example, the tenant may claim that he hasn't paid the rent because there's no heat in his apartment. If your attorney doesn't get to see a copy of the tenant's letter complaining about the heat problem, she'll probably be caught by surprise when the tenant makes this claim in housing court. But if the attorney knows about this beforehand, she can be prepared with any defenses you may have to the tenant's claim, such as an explanation that the tenant has control of the heat in her apartment.

Also, a letter from the tenant may help your attorney defend against a tenant's claim in court. For example, a tenant may claim in court that he's entitled to a rent abatement because you never fixed his broken refrigerator. But if the tenant sent you a letter conceding that the refrigerator was repaired, your attorney can use this letter to fight the tenant's claim that you never fixed the refrigerator.

Any letters you sent to the tenant may be helpful to the attorney also. For example, you may have sent the tenant a letter trying to make an appointment to fix a problem in the apartment, to which the tenant never responded. Your attorney can use that letter to show that you attempted to fix the problem.

Copy of rent demand. If you, rather than your attorney, sent the tenant a rent demand, give a copy of it to your attorney.

⧫ Why needed. “If the rent demand was done by the owner, it will probably be no good because it has to comply with the lease and strict requirements of the state's Real Property Actions and Proceedings Law,” says Welikson. The rent demand also needs an appropriate affidavit of service. If the demand wasn't performed properly, your case will be thrown out. It's better for your attorney to know before starting the case whether the rent demand you sent was defective. If so, your attorney can simply resend a proper rent demand, which will result in only a minimal delay. If your attorney doesn't find out until later that the rent demand was defective, you'll have to start over by sending a new rent demand.

Certified copy of Multiple Dwelling Registration Form (MDR). You're required to file this form each year with the city's Department of Housing Preservation and Development (HPD) if your building has three or more units.

⧫ Why needed. This form is needed if the case goes to court. Otherwise, if you have a current registration, you just need to give the registration number and name and address of the registered managing agent, notes Welikson. The owner should check to ensure that the MDR is up to date as well as all Division of Housing and Community Renewal (DHCR) filings. “Steps should be taken to ensure that all documents match each other by comparing block and lot on the deed and MDR as well as comparing the deed owner, lessor, and petition to ensure that everything is in order,” says Bittens.

The current MDR form may help your attorney prevent a dismissal or delay of your case. The judge can verify that you've registered with the HPD by checking the court's computer. But it's a good idea for your attorney to also have a certified copy of the property registration form on hand to avoid either a delay if the computer is down or a dismissal if the computer shows the wrong information.

Current rent ledger. Give your attorney a computer printout or handwritten ledger from your office showing a history of the tenant's rent payments. These records should go back at least as far as the last month in which the tenant's rent was paid in full.

⧫ Why needed. Your attorney needs this information for two reasons: First, she must know the amount of rent owed so that she can properly prepare the court papers. Second, these documents will help your attorney prove in court how much rent is due and for which months.

Certified rent registration summary printout. If the tenant is rent stabilized, you'll need to give your attorney a certified rent registration summary printout that you get from the DHCR.

⧫ Why needed. If the tenant is rent stabilized, you'll need to show that the building and the tenant's apartment were registered with the DHCR for each year in which you're claiming rent went unpaid. The easiest way for your attorney to prove this is for you to get a certified registration summary printout from your local DHCR borough rent office.

DHCR orders adjusting tenant's rent. If the tenant is rent controlled or rent stabilized, your attorney may need any DHCR orders that adjusted the tenant's rent—for example, a major capital improvement rent hike order or a rent restoration order. In particular, if the tenant is rent controlled, give your attorney any orders of eligibility you've gotten from the DHCR allowing you to increase the apartment's maximum base rent (MBR).

⧫ Why needed. Your attorney needs these documents to back up the rent your legal papers claim the tenant owes. Your attorney will probably have to arrange to get certified copies of these documents from the DHCR by getting the court to issue a demand for the documents.

MBR records. If the tenant is rent controlled, give your attorney the most recent MBR notice form you sent to the tenant. Also, give your attorney certified copies of the most recent MBR master building rent schedule you filed with the DHCR.

⧫ Why needed. Your attorney needs these documents to prove what rent you're entitled to collect from the tenant. To get a certified copy of the most recent MBR master building rent schedule from the DHCR, fill out a “Request for Access to Public Records” [DHCR Form FOIL-1 (09/09)] and file this form at the DHCR's Gertz Plaza office with the Records Office Examiner.

In Item 6 of the form, check off the box “Record Review—MBR Profile” and specify that you need a certified copy of the master building rent schedule and the year you need.

Practical Pointers

Be sure to tell your attorney if you know of any subtenants or occupants living in the apartment. There's a place on our checklist to list their names. Your attorney can then include those people in the nonpayment case. If they're not named in the case, any judgment or eviction warrant you get won't apply to them.

Finally, according to Bittens, the most important thing an owner or manager can do to facilitate an expedient resolution of his case is to be in court as a witness and be prepared to testify. “Oftentimes, there is some reluctance on the part of agents to make court appearances because, frankly, it is very time consuming. A lot of time is spent sitting and waiting for a judge,” says Bittens. But the best way to move a case forward to trial is to be ready with all documents and a witness, and telling the court “send me to trial.” Since it can take more than a couple of court appearances to get a trial judge, it's important to be ready from the beginning, since there's so much built-in delay, he notes.

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