Get Staff to Report Signs of Tenant-Related Trouble

Your building employees are in a perfect position to keep you up-to-date on what’s going on in your building. And the information they give you about tenants can be critical in helping you run your building. They can alert you to lease violations and unauthorized tenants, and they can help you build cases against troublesome tenants.

     For example, in a recent case, the testimony of building employees was instrumental in allowing the income of a tenant’s roommate to count in a high-rent/high-income deregulation proceeding. Sworn statements from building employees showed that the roommate was seen entering and exiting the building on a nearly daily basis during the relevant time periods, which showed that the roommate was living in the apartment as his primary residence when the income certification form was delivered. The tenant also acknowledged that the roommate lived in the apartment in March 2004, when the income certification form was delivered [Power: DHCR Adm. Rev. Docket No. ZL410025RT, November 2012].

     For another example, if your doorman reports that he hasn’t noticed a particular tenant coming in or out of the building in a long time, this tips you off that the tenant may not be using the apartment as a primary residence. Or if your super performs repairs in a tenant’s apartment and reports that the tenant has installed a washing machine, in violation of his lease, you can take appropriate action to get the tenant to remove the washing machine—or seek the tenant’s eviction if he refuses.

     But don’t assume that your employees know what information to report. To avoid any confusion, we’ll tell you what your employees should—and shouldn’t—report, and give you a Model Memo: Guidelines on Reporting Tenant Information, that you can distribute to your employees.

Information Employees Should Report

Here’s the information you should ask your employees to report to you:

     1. Lengthy tenant absence from apartment, or frequent absences of moderate length. If a tenant hasn’t been seen at the building for, say, longer than six months, this could be a sign that the tenant is no longer using the apartment as his primary residence.

     Many tenants take advantage of rent-control and rent-stabilization laws to use their apartments as a low-cost second home. They actually live elsewhere, but keep their New York City apartments for business or pleasure. Courts will look at the amount of time the tenant lives in the apartment. If he lives in the apartment less than 183 days a year, chances are good that the tenant isn’t using his apartment as his primary residence.

     It may turn out that the tenant has a valid reason for being gone from the apartment (for example, he may be caring for a sick relative). Even so, courts say that a tenant must still show “an ongoing, substantial, physical nexus with the . . . premises for actual living purposes” [Katz Park Ave. Corp. v Jagger, October 2008]. But if your employee reports these absences to you, it may pay to look into what’s going on (for example, by hiring a private investigator). You may discover that you have a good chance of winning the tenant’s eviction for nonprimary residence.

     2. Unauthorized move-ins. If a rent-stabilized tenant asks your permission to sublet an apartment, you can’t “unreasonably” say no to a sublet request according to the state’s sublet law [RPL Sec. 226-b]. But if a subtenant moves in before getting your permission, the tenant is illegally subletting the apartment. If your employees notice an unauthorized person moving into an apartment, this may be a sign that the tenant has illegally sublet the apartment to someone, without your permission.

     Before you sue to evict a tenant for illegally subletting an apartment, you must send the tenant a “notice to cure,” which gives the tenant a chance to correct the illegal sublet. You can then seek the tenant’s eviction if he refuses.

     3. Heavy traffic to or from apartment. This may indicate that the tenant is illegally using the apartment for business purposes such as a doctor’s office, or the tenant might be engaged in illegal activity such as drug dealing or prostitution. Have your employees tell you if they notice police activity at an apartment.

     Having employees alert you early on to an apartment suspected of illegal activity will help you gather proof that the apartment is habitually used for illegal purposes. In one case, an owner sued to evict a tenant for permitting the use of his apartment for the illegal sale of drugs, but the lawsuit failed due to insufficient proof. The tenant’s son had been sentenced and jailed for criminal possession of a controlled substance. But the owner couldn’t prove that the apartment was being habitually used in connection with the sale of drugs. The court pointed out also that there was no other evidence or testimony showing that the owner ever had a problem with the tenant previously [Riverside Park Community, LLC v. Ventura, October 2012].

     4. Nuisance behavior. If a tenant is engaging in disruptive behavior that interferes with other tenants (say, making loud noises, or verbally harassing other tenants), this may be grounds to evict the tenant for what’s called “nuisance behavior.” You’re likely to learn about the problem eventually from tenant complaints. But it’s good to get first-hand accounts from your employees because these may help you in court if you seek the tenant’s eviction. You may also be able to evict for nuisance behavior if the tenant physically damages the building by littering or by marking it with graffiti.

     5. Additional apartment occupants. Although your tenants are entitled to have roommates, your lease may limit how many roommates they can have. If apartments in a building are overflowing with occupants, it leads to several problems. Not only does it make for uncomfortable, cramped living and pose a health and safety hazard, but a building’s systems can get over-burdened. It’s important to note that your lease clause limiting the number of roommates can’t be more restrictive than the state’s roommate law, found in Section 235-f of the State’s Real Property Law. You may want employees to tell you if a tenant has more roommates than the lease allows, so you can seek her eviction.

     6. Renovations and/or appliances that violate lease. Your lease may also bar tenants from making certain renovations in their apartments or from installing certain appliances (for example, washing machines). Be sure to give employees examples of what types of renovations and/or appliances your lease bars so they’ll know what to report. Again, if an employee reports to you that a tenant is violating the lease, you may want to get him to correct the violation, and seek his eviction if he refuses.

     7. Pets. If your lease bars tenants from having pets, your employees must immediately tell you about any pets they see. If you don’t start a court case within three months of the owner or building employee learning about the pet, Section 27-2009.1 of the New York City Administrative Code says that you lose the right to enforce the no-pet clause, and the tenant will be allowed to keep the pet.

     8. Suspected move-out. If your employees suspect that a tenant has moved out of an apartment (for example, they see the tenant’s furniture being loaded onto a moving truck), you’ll want to know. The tenant may have abandoned the apartment, leaving you free to re-rent it. Or the tenant may be trying to install an illegal subtenant in the apartment, without your permission.

Information Employees Should Not Report

You should also specifically instruct your employees not to report certain information. A clear policy of discouraging your employees from giving you information that you could use for a discriminatory purpose can help you avoid liability if a tenant claims discrimination.

     Directly or indirectly exhibiting a preference or limitation on the basis of race, color, creed, gender (including gender identity and sexual harassment), age, national origin, alienage or citizenship status, sexual orientation, disability, marital status, partnership status, lawful occupation, family status, or lawful source of income can give rise to a discrimination claim in New York City.

     So tell your employees not to give you information about tenants’ personal lives and relationships; tenants’ lifestyle choices; tenants’ race, religion, ethnicity, sexual orientation, or political views; and anything else that a tenant tells an employee in confidence (unless it relates to illegal activity or lease violations).