How to Avoid Fines When Tenants Don't Respond to Window Guard Notice

If you plan to send the annual Department of Health & Mental Hygiene (DOHMH)-required window guard notices to your tenants by Jan. 16, 2017, you may believe you’ve fully complied with your window guard obligations. That’s just the first step, however. If a tenant hasn’t signed and dated the notice and sent it back by Feb. 15, 2017, and you don’t know whether he or she wants or needs window guards, DOHMH regulations require you to do more. You must follow up with the tenant to find out whether a child age 10 or younger lives in the apartment and, if so, whether approved window guards are properly installed or maintained.

Doing nothing can get you in a lot of trouble. As a result, following up with tenants who don’t return window guard notices is essential. Here’s a rundown of what can happen to you if you don’t follow up and the follow-up steps you should take.

What Can Happen if You Don’t Follow Up

Not following up with tenants who don’t send back the window guard notice can be very costly. Here’s what you could face.

DOH fines and criminal penalties. An owner can get hit with a civil penalty of up to $500 for each violation of the window guard law. Also, not complying with the law is considered a criminal misdemeanor. If convicted, an owner can face a $500 fine and up to six months in jail.

Damages if child is injured. A tenant whose child is injured after falling out a window that doesn’t have window guards could sue you for damages, pointing out that you didn’t comply with the window guard regulations. You could end up paying damages to that tenant.

How to Follow Up with Tenant

If a tenant doesn’t respond to your window guard notice, the DOH regulations require you to take two steps:

Step #1: Inspect the apartment at reasonable times. You must first inspect the apartment at “reasonable times” to determine whether a child age 10 or younger lives there. If one does, you must check whether approved window guards are properly installed and maintained. You have the legal right to make this kind of inspection if the tenant hasn’t returned the notice by Feb. 15.

Inspecting at “reasonable times” means trying to get access to the apartment at various times and on various days. For example, if you went to the apartment to inspect during business hours and no one was at home, you should try again in the evening or on the weekend. That way, you increase the chance of eventually finding the tenant at home.

Give your super a list of all tenants who didn’t respond to the window guard notice, along with some extra notices. Have the super go to each apartment on the list, asking the tenants to sign the window guard notices then and there. Also, if your super knows (even without the notice) that a child age 10 or younger lives in an apartment, make it a priority to inspect that apartment and make sure window guards are properly installed. It’s more important to get the window guards installed in an apartment where you know a child lives than to get the notice signed.

Step #2: Notify DOHMH if tenants don’t respond. Starting March 1, if you’ve been unable to determine one or more tenants’ need or desire for window guards, write to the DOHMH’s Window Falls Prevention Program at 253 Broadway, 6th Fl./CN59A, New York, NY 10007, and ask for help. It’s probably easiest to write a separate letter for each tenant who doesn’t respond.

Each letter should show the DOHMH that you tried to get in touch with the tenant at various times and on various days (preferably including daytime, evening, and weekend attempts). Don’t simply send a form letter. Detail the dates and times you tried to get in touch with the tenant or gain access to the apartment. Indicate why you’ve been unable to comply with the window guard regulations. For example, the tenant never returned the notice and has refused access to allow you to inspect the apartment for yourself. And say that you’re seeking the DOHMH’s help in getting the tenant to cooperate. We’ve provided a Model Letter: Send Letter to Notify DOHMH that Tenant Didn’t Return Window Guard Notice.

If your letter doesn’t show that you took the required steps, the DOHMH will send you a letter indicating that your efforts so far have been inadequate, and advising you to take additional steps. If your letter shows that you took the required steps, the DOHMH will send a letter to the tenant informing him that he’s violating the city’s health code by refusing you access to inspect for and, if necessary, install window guards.

The DOHMH will send you a copy of this letter and a feedback form. The owner should fill out the feedback form and send it to DOHMH to let them know if the tenants have complied with the law. If all else fails, the owner can seek a tenant’s eviction on the ground that the tenant is violating both the lease and the law by not giving the owner access. Most likely, this drastic step will prompt the tenant to let the owner into the apartment.

What Else You Can Do

Here are some other suggestions you can follow to increase the chances that your tenants will return the window guard notice to you. Although DOHMH regulations don’t specifically require you to take these steps, taking them will help you prove to the DOHMH that you’ve made a concerted effort to determine whether the tenant requires window guards.

Send letter to tenant who hasn’t scheduled inspection. Before trying to inspect the apartment of a tenant who hasn’t returned the window guard notice to you, write a letter reminding the tenant that he hasn’t returned the notice. Get a certificate of mailing from the post office to prove that you sent the letter to the tenant on the specified date.

Place extra window guard notice forms in common areas. Tenants sometimes misplace the window guard notices that you send to them. So, if possible, put some blank notices in the building’s common areas, such as the lobby or laundry room.

Make it easy for tenants to return notice. Make it easy for tenants to return the notice to you. Owners could place a box at a common area location where their tenants can drop off the completed window guard notice. Or owners can tell tenants to tape the completed notices to their doors and give a date and time when the super will pick up the notices.