Follow Five Dos & Don’ts When Tenant Denies Access for Repairs

January 26, 2018

If a rent-regulated tenant has filed a reduced service complaint with the DHCR, you’ll need access to the tenant’s apartment to investigate the complaint and make any needed repairs. You’ll also need access to make repairs if you’re trying to get the rent restored after a rent cut order has been issued. If the tenant denies access in either of these situations, you must follow the DHCR’s no-access policy to avoid a rent cut or get the rent restored.

Properly following the DHCR’s no-access policy can get confusing. To help you understand what to do, and what your rights are, we’ll give you some basics on this policy and five dos and don’ts to help you follow it.

No-Access Basics

The DHCR’s no-access policy is set out in Rent Stabilization Code Section 2523.4(d)(2). If a tenant denies access for repairs, you must send the tenant a letter to arrange an access date and proposing a specific date. You must send this letter by certified mail, return receipt requested, and mail it at least eight days before the access date you’re proposing.

If the tenant doesn’t respond to the letter, you must send a second letter, again by certified mail, return receipt requested, specifying another access date. You must also mail this letter at least eight days before the proposed access date.

If the tenant doesn’t respond to your second letter, state in your answer to the tenant’s complaint (or in a letter to the DRA) that the tenant has denied you access to the apartment, preventing you from making the repair. Or check off Box C of the rent restoration application (RTP-19) to indicate that the tenant has “unreasonably refused” to permit you to restore the service. Include copies of the letters you sent and the certified mail return receipts as proof.

The DRA deciding the case will then schedule a special “no-access” inspection at which a DHCR inspector will be present and to which you can bring your repair workers. If the tenant provides access, you’ll be able to investigate and make repairs, and avoid a rent cut or denial of your rent restoration application. If you’re ready to make repairs and the tenant doesn’t give you access, the DRA should dismiss the tenant’s complaint or grant your rent restoration application.

FIVE DOS AND DON’TS

To help you properly follow the DHCR’s no-access policy and avoid mistakes, here are five dos and don’ts. Following them when a tenant denies access for repairs should help you avoid rent cuts for reduced services or get rents restored after they’ve been cut for reduced services.

Specify Access Dates in Letters

Make sure each of your two letters to the tenant sets a specific access date and not just a stern request for the tenant to set up a date. If you don’t set specific access dates in the letters, you could lose the right to get a no-access inspection.

For example, in one case, after a tenant complained of a reduction in services based on various apartment conditions, the property manager and building super went to the tenant’s apartment on five separate occasions, and the owner sent letters to the tenant by certified mail and hand-delivery five times. The tenant never responded, and eventually the owner sent the tenant a notice to cure and later started an eviction proceeding against the tenant for failing to give access.

The owner’s letters to the tenant were sent by certified mail, return receipt requested, but didn’t propose access dates. Instead, the letters urged the tenant to contact the owner to set up appointments for repairs. As a result, a rent reduction was ordered [Violet Towers, Inc.: DHCR Adm. Rev. Docket No. ZE410014RO; May 2012].

Document Efforts to Gain Access for Repairs

Make sure you document all efforts to gain access to an apartment for repairs. This includes being able to show that you have already sent two letters to a tenant to arrange access. The DHCR can only direct a “no-access” inspection with the DHCR’s inspector present only after an owner is be able to show the proper letters were sent.

In one case, a tenant complained of a reduction in various apartment services. The DRA ruled for the tenant and reduced his rent. The owner later applied for rent restoration based on the restoration of services. The DRA ruled against the owner, who appealed and lost. The owner claimed that the tenant prevented restoration of the bathroom sink but didn’t sufficiently document all efforts to gain access to the apartment for repairs. However, the owner didn’t submit proof of its access requests to the DHCR [344 East 85th Street, LLC: DHCR Adm. Rev. Docket No. FM410020RO, September 2017].

Don’t Wait Too Long to Notify DRA of Access Denial

Don’t wait too long to notify the DRA if the tenant denies you access for repairs on the dates specified in your two letters. The longer you wait, the greater the chance that the DRA will go ahead with its normal inspection of the tenant’s apartment to check whether the complained-of conditions exist. If they do, the DHCR will order a rent cut or deny your rent restoration application without considering your no-access claim.

For example, in one case, the owner applied to restore the rent after the DHCR had ordered a rent cut based on reduced services. The owner sent the tenant two letters by certified mail, return receipt requested, one in January and one the following month, asking the tenant to provide access. But the owner didn’t notify the DRA that it had been denied access until it sent a letter in August. The DRA denied the owner’s rent restoration application, finding that the defective conditions still existed. The owner appealed, claiming that it had followed the no-access policy but that the tenant didn’t provide access. The DHCR said that although the owner had sent the tenant the two required letters, it had waited too long to notify the DRA about the lack of access [Pacuku: DHCR Adm. Rev. Docket No. SI310076RO, January 2005].

Get Complaint Dismissed if Tenant Denies Access on Inspection Date

If the tenant doesn’t let your repair workers into the apartment at the no-access inspection the DRA schedules, point to that access denial to challenge the tenant’s complaint or get the rent restored. The DRA should deny the tenant’s complaint or grant your rent restoration application in this situation.

For example, one owner applied to restore the rent. The DRA initially reduced the tenant’s rent based on cracked kitchen and bathroom ceilings, mold, and bubbled paint. The DRA ruled for the owner after the tenant failed to provide access for inspection. The tenant appealed and lost. The tenant claimed that services hadn’t been restored and that she was away at the time of the scheduled Dec. 18 inspection. But the DRA sent the tenant its inspection notice by regular mail on Dec. 4. There was no proof, as the tenant claimed, that she attempted to reschedule the inspection, and the tenant also submitted no proof of good cause for failing to cooperate with the inspection [Robles: DHCR Adm. Rev. Docket No. DO410014RT, November 2015].

Be Present and Ready to Make Repairs on Inspection Date

Arrive at the no-access inspection with the repair workers and tools you’ll need to make repairs. In one case, a tenant complained of a reduction in services. The DRA ruled for the tenant and reduced her rent. The owner appealed and lost. The owner claimed that the tenant wasn’t entitled to a rent reduction because its contractors were willing and able to repair the leaks the tenant complained about but the tenant refused to provide access. The DHCR found that the owner proved it sent the tenant notice requesting repairs. But the owner didn’t appear with its repair person at the later no-access inspection scheduled by the DHCR. So the tenant’s rent was properly reduced [Samaroo/JHB: DHCR Adm. Rev. Docket No. EX610048RO, September 2017].

In another case, the owner wasn’t ready to make the necessary repairs. A tenant complained of a reduction in services based on defective floor tiles. The DRA ruled for the tenant and reduced his rent. The owner later sought rent restoration based on the restoration of services. The DRA ruled against the owner, who appealed and lost. The DHCR had ordered an access inspection for Dec. 26, 2013. The inspector reported that the owner, his building manager, and the super all were present but didn’t have any materials to make repairs. The owner claimed that they couldn’t have known what color replacement tiles were needed before the inspection. The DHCR didn’t find the owner’s claim credible [Weinberger: DHCR Adm. Rev. Docket No. CM210014RO, January 2015].

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