Avoid Rent Cuts on Heat and Hot Water Complaints

As winter approaches, heat and hot water complaints probably will be the most common type of service complaint you will face. A tenant may complain to the Division of Housing and Community Renewal (DHCR) of a problem in his apartment. Or a group of tenants may organize and file a building-wide complaint with the DHCR.

If you do not stay on top of heat and hot water service complaints, you may face rent cuts. Fortunately, you have defenses to heat and hot water complaints. We have found decisions in which owners have successfully defeated heat and hot water complaints brought by tenants. They may provide you with arguments as to why you should not be burdened with a rent cut.

Heat and Hot Water Requirements

Heat season runs from October 1 through May 31 each year. If your building has a central heating system, you must provide heat during the season as follows:

• Between the hours of 6 a.m. and 10 p.m., whenever the outside temperature falls below 55 degrees Fahrenheit, you must keep tenants' apartments at a temperature of at least 68 degrees Fahrenheit.

• Between 10 p.m. and 6 a.m., whenever the outside temperature falls below 40 degrees Fahrenheit, you must keep apartments at a temperature of at least 55 degrees Fahrenheit.

For hot water, either state law or city law covers your building, depending on the building's size and age. If state law covers the building, you must provide hot water of at least 120 degrees Fahrenheit in every bath, shower, washbasin, and sink 24 hours a day, every day of the year. If city law covers your building, you must provide hot water of at least 120 degrees Fahrenheit in every bath, shower, washbasin, and sink between 6 a.m. and midnight every day of the year.

State law covers all buildings that are three stories or more in height, that have three or more apartments, and that were built after April 18, 1929, and before Jan. 1, 1951. State law also covers all buildings with three or more apartments built after Jan. 1, 1951.

However, owners who are exempt under the state laws may be covered under local law. City law covers all buildings with three or more apartments built before April 18, 1929. City law also covers all buildings that have less than three stories, that have three or more apartments, and were built after April 18, 1929, and before Jan. 1, 1951.

No Rent Cut if Problem Is Fixed Before Tenant Files Complaint

A situation may occur this winter in which your heating system breaks down. And although you quickly fix the problem, the apartment or building may be without heat or hot water for a short time. Meanwhile, the tenant may have complained to the DHCR of a decrease in service.

In this case, you can argue that even if there was a heat and hot water problem it existed only briefly, resulted from necessary maintenance to the heating system, and was quickly corrected. As a result, you can argue that there was no decrease in service warranting a rent cut.

The DHCR consistently rules that minor heat and hot water service interruptions that are quickly fixed don't amount to a decrease in service. You should be able to show that you restored services before the DHCR inspects. You can submit any repair bills, canceled checks, and receipts for repair work. If you can, get a signed affidavit from the repairman of the work done or a signed statement from tenants that heat and hot water have been restored. By taking these steps, you should be able to avoid a rent cut.

In one case, a tenant complained that an owner failed to provide heat and hot water between Dec. 26, 2007, and Jan. 11, 2008. The District Rent Administrator (DRA) ruled against the tenant because he admitted in his complaint that the service had been restored. When the tenant appealed, he argued that he should be compensated for the increase in his electric bill during the period he had no heat or hot water. The DHCR ruled against the tenant. The Rent Stabilization Code authorizes the DHCR to order a restoration of services and to reduce the tenant's rent if services aren't being maintained. Under DHCR Policy Statement 90-2, if the landlord restores services prior to DHCR inspection, generally no rent reduction is ordered [Dangler, July 2008].

The key is to show that service interruptions have been minor. If you don't promptly address heat problems in your building, the chance that you will face a rent cut increases. In one case, tenants complained of a reduction in building-wide services based on lack of heat. The DRA ruled for tenants and reduced their rents based on a finding that there had been inadequate heat for two months. The owner appealed, claiming that he had to turn off the heat on certain days in January and February for repairs and admitted that heat in certain apartments was shut off to fix heating units on other days. This was consistent with the tenants' claim that there was no heat on many days during these months. So there was no reason to revoke the two-month rent reduction granted to tenants [Spivak/Solgar Realty, March 2000].

Outstanding Heat and Hot Water HPD Violations

If an outstanding Housing Preservation and Development (HPD) heat and hot water violation is on record for the apartment or apartments involved in the service complaint when the DRA issues its order on the complaint, the order will go against you. And the DHCR has upheld such orders.

In one case, the DHCR imposed a rent cut based on inadequate hot water. The tenant had submitted proof of an outstanding HPD violation for inadequate hot water. The DHCR noted that the owner never presented any evidence to the DRA that it had corrected that violation [Bartucz Realty, January 2002].

In some instances, you may be able to argue that a DRA's decision was based on HPD violations that were too old to be reliable. For example, a tenant complained that heat and hot water in his apartment were inadequate. The DRA ruled for the tenant and reduced his rent. The owner appealed. However, the DRA's decision was based on HPD violations that were more than four years old. The owner argued that the DRA should have relied on recent inspection reports or conducted its own inspection. The DHCR ruled for the owner and revoked the rent reduction. The tenant had filed his complaint in 2004. The HPD violations the tenant relied on were issued in 1999 [80 Varick St. Group L.P., October 2007].

To avoid losing your case based on an outstanding HPD heat and hot water violation, check for these violations whenever you face a complaint for reduced services based on a claim of inadequate heat and hot water. You can check for old violations on HPD's Web site, http://www.nyc.gov/html/hpd. According to HPD, you may see violations dating back as far as 1960 on the site. It is very likely that the conditions may no longer exist, but they will remain on the official record until there has been either a reinspection by HPD or a certification by the building owner that the conditions have been corrected.

If you discover any outstanding heat and hot water violations, make sure that you correct them, and if the deadline for certification hasn't passed, certify their correction with HPD.

Excessive Heat Is Invalid Complaint

If a tenant complains about excessive heat, ask the DHCR to dismiss the complaint. The DHCR has previously ruled that this condition is not the proper subject for a rent cut based on the Rent Stabilization Law and Code. This stance was reaffirmed in a DHCR opinion letter by Michael B. Rosenblatt from October 2005.

A tenant said that the DHCR refused to address his complaint that the landlord provided too much heat during the heating season. In the opinion letter, the DHCR pointed out that it had no authority to direct the landlord to reduce the heat. The code says nothing about maximum temperatures. The New York City Housing Maintenance Code states that landlords must provide heat from Oct. 1 through May 31. From 6 a.m. to 10 p.m., the indoor temperature must be at least 68 degrees Fahrenheit when the outside temperature falls below 55 degrees. Between 10 p.m. and 6 a.m., the indoor temperature must be at least 55 degrees when the outside temperature falls below 40 degrees.

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