How to Respond to Tenants Who Pose Health or Safety Risks
By Eileen O’Toole, Esq.
Sometimes staff or neighboring tenants may complain about behavior by a tenant that poses a health or safety risk. They may say that a neighbor keeps animals that he’s unable to care for, or simply keeps too many. They may complain that a tenant allows his apartment to become so dirty and cluttered that there’s an offensive odor, vermin infestation, and serious risk of fire. Or a tenant may repeatedly harass others, for no apparent reason, by yelling at or physically threatening neighbors and building staff.
Ongoing objectionable conduct or conditions may be grounds for eviction. Most leases contain a provision permitting termination where a tenant is committing or permitting a “nuisance.” By definition, a “nuisance” includes actions or conditions that interfere with someone else’s enjoyment of his own apartment. In addition, even without rising to the level of a nuisance, conditions that violate a lease can be grounds for eviction. For example, many leases contain a clause requiring tenants to “take good care of” their apartments.
Evicting a tenant for objectionable conduct or hazardous apartment conditions can be difficult because it’s tough to prove a nuisance. A tenant may refuse access for inspection and documentation of apartment conditions. In the case of assaultive behavior, it may be a matter of one tenant’s word against the other’s. Neighbors who complain about a tenant also may be reluctant to testify in court, especially if the offending tenant is elderly or appears to be in some way disabled. The court also can be reluctant to see these tenants evicted and may pressure an owner to give the tenant time to “cure”—that is, fix—the problem.
On the other hand, if an owner takes no action, the condition may worsen, and complaining tenants may withhold rent or take other legal action against the owner. But while it may take some time, tenants can be evicted for nuisance behavior, particularly in cases where problematic conditions or conduct continue after an agreed-to probationary period.
Verify Problem
If you’ve identified a problem, you should talk to your attorney about what you’ll need to prove a nuisance or lease violation based on a tenant’s aggressive conduct or hazardous apartment conditions. To prove a nuisance, an owner must show that the problem has been ongoing or recurring.
At the outset, owners who receive complaints should advise any aggrieved tenants to notify the superintendent or other building staff when they experience a problem so that the staff member can attempt to verify the claim. Instruct building staff to keep a notebook or complete incident reports on forms designed for this purpose. Also, ask tenants to put their complaints in writing with a description of who was involved, what happened, when the incident occurred, and where it took place. To make sure they get enough details, you may want to give tenants a form for this purpose—you can find an example of one on the Insider’s Web site by clicking here.
For problems relating to the apartment condition—such as odors, vermin, clutter, or animals—you should attempt to enter the apartment and, if possible, take photographs. Also, keep signed statements documenting any refusal by the tenant to give access to the owner, the super, an exterminator, or repair personnel. For corroboration, more than one representative of the owner should go to the apartment to view conditions.
If a tenant’s problem behavior takes place in the building’s public areas, consider installing video cameras, and maintain footage of any incidents in a manner that preserves the tape and prevents tampering. In the event of disturbances that warrant police intervention, building staff should request the badge numbers of the responding officers and copies of police reports made in connection with the incident.
Consider Alternatives to Litigation
If your investigation indicates that the problem tenant may be physically or mentally impaired, you may want to consider seeking intervention by an outside party before expending the time and expense involved for an eviction proceeding. Even if unsuccessful, this may demonstrate later to a court that you made good-faith efforts to resolve the problem.
Family members who may have been unaware of a tenant’s condition may respond in a productive way if contacted. You also can advise New York City Adult Protective Services (APS) that a tenant appears unable to carry out activities of daily living in connection with maintaining his apartment in a safe and sanitary condition. To do so, contact the APS Central Intake Unit at (212) 630-1853. APS is a state-mandated case management program that arranges for services and support for physically and/or mentally impaired adults who are at risk of harm (see www.nyc.gov/html/hra/html/services/adult.shtml). APS should at least investigate at that point through an attempted home visit with the tenant.
Unfortunately, tenants in need don’t always cooperate. And APS, likely overburdened, often won’t attempt to intervene until a marshal’s eviction notice has been issued.
Send Proper Notices
If no resolution appears possible without resorting to court action, you should first seek assistance from an attorney in connection with sending the notices that are required before starting an eviction proceeding. Any predicate notices must sufficiently set forth facts that support the claim. In addition, a notice to cure may or may not be required before sending a termination notice. This will depend on various factors, including the type of tenancy, the nature of the problem, the provisions of the tenant’s lease, and whether the claim is based on nuisance, violation of a specific lease clause, or both.
Example: An owner sued to evict a rent-stabilized tenant for nuisance, claiming that the tenant interfered with the comfort and safety of other building tenants by stuffing papers in the lobby door lock, smoking cigarettes and marijuana with guests in the building hallways, and playing basketball in the hallways. The court granted the tenant’s request to dismiss the case because no notice to cure was served before terminating the tenancy. The tenant’s lease stated that the owner must send a 10-day cure notice if the owner claimed improper conduct that annoyed other tenants.
The owner pointed out that another lease provision stated that, in the case of nuisance, the owner had to send only a termination notice. The court found that the “nuisance” complained of was indistinguishable from “improper conduct by tenant annoying other tenants” and that the owner therefore was required by the lease to send a notice to cure before sending a termination notice. In addition, the termination notice cited only three occasions of objectionable conduct and therefore was insufficient to constitute a nuisance [78 5th, LLC v. Suriel, April 2013; LVT #24802].
Eviction Likely to Require Trial
At the outset of a case based on nuisance and/or lease violations for hoarding, other apartment conditions, or objectionable conduct, the court may ask APS to evaluate the tenant, who often isn’t represented by an attorney. If it appears that the tenant doesn’t fully understand the court proceedings, the court also may appoint a guardian ad litem (GAL) to assist the tenant.
While a GAL may happen to be an attorney, the GAL doesn’t represent the tenant in that capacity; his or her role is merely to advise the tenant during the eviction proceeding. The GAL can’t force the tenant to, say, clean a cluttered apartment and can’t sign any stipulation on the tenant’s behalf.
In extreme cases, APS, a family member, or another concerned individual may seek the appointment of an “Article 81 guardian” based on a belief that the tenant is “incapacitated.” The filing of a petition for appointment of an Article 81 guardian will result in a stay of an eviction proceeding while another court considers that application. Once the Article 81 proceeding is decided, the eviction proceeding resumes. If appointed, an Article 81 guardian can be given power by the court to make certain decisions on the tenant’s behalf.
Since these types of cases typically involve questions of fact, a trial generally is required. Once a nuisance case goes to trial, the outcome often turns on the testimony of witnesses. The owner needs to demonstrate to the court that the disruptive tenant’s conduct is serious enough that a failure to evict will cause the owner or other building tenants to live under unacceptable and unreasonable conditions. Testimony by the owner and building employees often is not enough, and should be corroborated by the testimony of complaining tenants who have been affected by the conduct or conditions.
The importance of following up on tenant complaints in order to present effective witnesses is demonstrated by comparing two cases based on harboring animals:
Example: An owner successfully sued to evict a tenant for nuisance. The owner and four tenant witnesses all testified that the tenant kept 10 pigeons and two dogs in her apartment. They described offensive odors, unusual noise, and vermin infestation, which substantially interfered with the comfort and safety of other tenants. The trial court ruled for the owner and the tenant lost her appeal [Piazza v. Greitzer, February 1996; LVT #10448].
Example: An owner sued to evict the tenant for nuisance due to odors in the building’s common areas that the owner claimed were caused by the tenant’s harboring of numerous cats in her apartment. The court ruled against the owner, who appealed and lost. The testimony was insufficient to support the claim. A commercial tenant below the apartment testified that the condition had lessened, a former tenant who noticed the condition didn’t complain to the tenant or to the owner, none of the tenant’s immediate neighbors were called to testify, and the court didn’t find the testimony of the owner’s employees credible [Lemle v. Adjamie, March 2003].
If, following trial, the court finds that the tenant committed a nuisance or a lease violation, the tenant may argue that he should be given another chance to cure. You should argue that it would be futile to do so.
Example: A trial court found that the conditions in a tenant’s apartment were harmful to the health, safety, and comfort of others due to roach and rodent infestation, clutter, offensive odors, stacked newspapers, and disarrayed wiring. The court and appeals courts denied the tenant any further opportunity to cure the nuisance conditions. Testimony and the trial court’s inspection showed that the conditions had existed over a substantial period, hadn’t abated although the tenant had been given ample opportunity to do so, and were unlikely to be cured [Cabrini Terrace Joint Venture v. O’Brien, March 2010; LVT #22553].
Ultimately, if conditions or conduct present a nuisance, circumstances such as a tenant’s disability won’t constitute a defense if a threat to the health and safety of other tenants is posed. In one case involving a mentally ill tenant, the court granted eviction for the New York City Housing Authority against a tenant whose apartment was extremely dirty and stockpiled with flammable items [A.R. v. NYCHA, October 2010; LVT #22960].
Consider Putting Tenant on Probation
Sometimes, even after a trial has started, owners and tenants decide to settle nuisance cases by stipulations that are approved by the court. Signing the stipulation may be an attractive alternative to both sides, who may otherwise face the uncertainty of the trial court’s ruling, as well as the expense and delay of any appeals.
Under these agreements, a judgment and warrant can be issued in the owner’s favor but enforcement delayed while a tenant is put on probation, typically for one or two years. The tenant should agree to refrain from the objectionable conduct during the probation period. If there are no problems during the probation period, the case is dismissed and the eviction warrant vacated.
If the agreement is violated, the owner is permitted under such stipulations to bring the tenant back to court for a hearing on whether the tenant violated the stipulation. Courts have strictly enforced probationary stipulations and ordered evictions in a number of cases involving tenant nuisances.
Example: An owner sued to evict a tenant on nuisance grounds claiming that the tenant repeatedly threatened building staff and certain tenants, wandered the hallways, and made excessive noise. The tenant had a history of mental illness, and was represented by both an attorney and a GAL. After the trial started, the parties entered into a two-year probationary stipulation. The tenant agreed to refrain from the alleged objectionable conduct, and not to harass certain tenants identified in the stipulation. A judgment was issued in the owner’s favor and an eviction warrant issued but stayed during the probation period.
At some point, the owner went back to court claiming that the tenant had violated the stipulation. The court ruled for the owner after a hearing and held that eviction could proceed. The tenant appealed and won at first, but a higher appeals court reversed, ruling that the eviction could proceed. Even in the absence of physical contact, the appeals court found that the tenant’s breach was substantial. He had accused the doorman of entering his apartment, punched the doorman in the chest with his finger several times, threatened to “kill” the doorman, and told a passing tenant that he would “get her too.” The appeals court noted that the probationary stipulation had been negotiated between the parties and their attorneys, and should be enforced [Hotel Cameron, Inc. v. Purcell, December 2006].
Example: An owner sought the eviction of an elderly, low-income tenant it claimed repeatedly assaulted other tenants and building staff both verbally and physically. Both sides were represented by attorneys and the tenant also had a GAL. During the trial, the parties negotiated a settlement. An eviction warrant was issued and stayed. The tenant was placed on probation for two years, and agreed to: (1) refrain from “verbally or physically assaulting other persons” or “stalking or otherwise harassing other tenants, staff, vendors, or visitors”; and (2) “socialize or interact with other persons at the Building in a peaceable manner.” The stipulation stated that “[a]ny single default or breach ... shall be deemed a material violation of the Stipulation and shall not be subject to cure.”
At a later hearing sought by the owner based on violations of the stipulation, witnesses testified concerning several incidents. In one, the tenant yelled and screamed at another, wheelchair-bound, tenant. In another, he struck an employee of his own attorney. These incidents, which occurred in the building lobby, were caught on videotape. The court enforced the stipulation, ruling that the eviction could proceed. The tenant’s appeal was denied [St. Margaret’s House HDFC v. Hope, March 2009, LVT #21130; affirmed February 2010, LVT #22488; appeal denied, LVT #22815].
Example: In another case, the court emphasized the “zero tolerance” aspect of the parties’ probationary stipulation. The landlord cooperative corporation had sued to evict a proprietary lessee who didn’t take proper care of his dogs, causing odors in the building. The co-op and lessee signed a two-year probationary stipulation and stayed execution on an eviction warrant. The court later ruled for the co-op after the tenant violated the stipulation’s provision that he promptly clean up if his dogs defecated or urinated in the apartment. The co-op proved at a compliance hearing that the lessee had left dog feces on the apartment floor on the day he left for a three-week vacation [565 Tenants Corp. v. Adams, November 2007].
Setting aside probationary stipulations can be difficult, as the courts don’t favor invalidating a negotiated settlement.
Example: A tenant tried to set aside a probationary stipulation when the owner brought the case back to court, claiming renewed nuisance behavior. The tenant’s attorney now claimed that the tenant didn’t have the “mental capacity” to enter into the stipulation 10 months earlier. The court ruled against the tenant, who presented no medical evidence of her claim. And even if an Article 81 guardian had been appointed for the tenant six months after she signed the stipulation, this wasn’t proof of mental incapacity at the time she signed the stipulation [400 West 59th Street Partners, LLC v. Edwards, August 2010].
Example: After a court allowed a tenant further opportunity to cure after she violated a probationary stipulation, an appeals court reversed the lower court’s decision. In the stipulation, the tenant agreed to prevent odors from coming out of her apartment. Witnesses showed that severe odors came from the tenant’s apartment into a medical office next door, which required the staff to close an examination room. Although this was a serious and substantial violation of the stipulation, the trial court delayed eviction on condition that the tenant refrain from any further default under the settlement agreement. The appeals court reversed, finding that the plain language of the tenant’s agreement called for eviction since the owner proved that the tenant violated the settlement agreement [521 East 72nd St. Realty Company, LLC v. Borovick, February 2010; LVT #22585].
About the Guest Editor
Eileen O’Toole, Esq. maintains a solo law practice in New York City that concentrates on landlord-tenant matters. A frequent writer and lecturer on rent regulation and other real estate topics, she is also the Contributing Editor of New York Landlord v. Tenant, the Insider’s monthly legal decision service. The cases discussed in this Special Issue include cites to their “LVT #,” which can be used to find the original court and agency documents and summaries online at www.LandlordvTenant.com.
Ms. O’Toole is also Editor of the annual Apartment Management Checklist, a one-stop resource for complying with the many laws and regulations affecting New York City apartment buildings. The 2014 edition will be published this November (check our Web site for more information).
Ms. O’Toole graduated from Boston University School of Law and served as Deputy Counsel to the Rent Stabilization Association of N.Y.C., Inc., before entering private practice. She has served as a member of the NYC Civil Court’s Housing Court Advisory Council, and as a lecturer at NYU’s Real Estate Institute.