How to Settle Nonpayment Cases Involving Repairs
When you sue to evict a tenant for not paying rent, chances are the tenant will claim in court that his apartment needs repairs and use that as an excuse for not paying rent. For example, the tenant may say he’s not paying rent because you haven’t painted his apartment in five years. You can usually reach a settlement with the tenant in these cases. You and the tenant sign a settlement agreement—known legally as a “stipulation”—in which you agree to make any needed repairs and the tenant agrees to pay the rent.
A poorly written stipulation can cause big problems for you. For example, it may allow the tenant to delay the eviction case while not paying any rent. Or it may make getting access to make repairs hard for you. Here are some recommendations for you to discuss with your attorney. Note that you may not always be able to get a housing court judge to go along with these recommendations. The housing court judge must approve the stipulation.
Give Specific Dates for Tenant to Provide Access
In most stipulations you’ll agree to make the repairs by a certain date and the tenant agrees to pay rent at a later date. But tenants may try to play games. They’ll repeatedly delay the eviction case by making it hard for you to get access for repairs.
To avoid this problem, some stipulations require the tenant to give you access for the repairs on a “mutually agreeable date.” But this still gives the tenant a chance to delay. Instead, in the stipulation get the tenant to agree to specific dates and times to provide access for repairs. Then make sure your employees or contractors show up on that date to make the repairs.
Also, it’s a good idea to give yourself more access dates than you think you’ll need to finish the repairs. Then you can be sure to have enough time to get the work done. You won’t have to fight with the tenant about additional dates.
Sample language. Say you want the tenant to agree to provide access for a paint job. You think the painter will need only one day to finish the job. Here’s what the stipulation could say:
Tenant agrees to provide access to her apartment on Nov. 20 and 21 from 9:00 a.m. to 5:00 p.m. to the owner’s painter.
If no access. Most stipulations say that if the tenant doesn’t abide by the stipulation’s terms—known legally as a “default”—the owner can “restore the case,” which means that the owner can go back to the judge. If the tenant doesn’t allow you access on the dates set in the stipulation, the tenant has defaulted and you can go back to the judge. Go back immediately. Ask the judge to order the tenant to provide access as soon as possible on a specific date or dates.
Don’t wait for the date by which the tenant is supposed to pay the rent to come and go before you go back to the judge. If you do, it will only delay your case further. Chances are, if the tenant has denied you access for repairs, the tenant won’t pay you the rent owed by the date set in the stipulation. You’d have to go to the judge at that time anyway.
At this point, you can ask the judge to order the tenant’s eviction for violating the stipulation. If you’ve made the repairs, you can point out that you lived up to your obligations under the stipulation but the tenant still defaulted on his obligation to pay the rent.
If you haven’t yet made the repairs because a new access date for repairs has been set for after the date the tenant was supposed to pay the rent, you can tell the judge that you didn’t make the repairs because the tenant didn’t give you access on the dates set in the stipulation and you had to get the court to order the tenant to give you access on a later date.
The judge still may give the tenant more time to pay the rent owed. But you’re setting up your case so that the judge will quickly start getting impatient with the tenant’s excuses.
Don’t Make Rent Payment Conditional on Repairs
Some stipulations say that the tenant will pay the rent if the owner makes repairs. This is not optimal for you because it opens the door for the tenant to delay paying the rent owed by claiming either that the repairs weren’t made or that they were made improperly. It also encourages the tenant to give you a hard time getting access because the longer it takes to make the repairs, the longer the tenant can avoid paying the rent.
Instead, make the tenant’s responsibility to pay the rent and your responsibility to make repairs two separate obligations, independent of one another. But have the date for making repairs come before the date the tenant must pay the rent, since that’s the way most judges will want it.
Sample language. Say you agree to paint the tenant’s apartment and the tenant agrees to pay you $600 of back rent he owes. Here’s what the stipulation could say:
The owner agrees to paint the tenant’s apartment by Nov. 12, 2016. The tenant agrees to pay $600 by Nov. 15, 2016.
This wording puts you in a stronger position with a tenant who doesn’t pay the rent and claims that the repairs weren’t made or were made improperly. You can go back to court and argue that under the stipulation, the tenant still must pay you the rent.
Using this wording also makes it likelier that the tenant will cooperate by giving you access for repairs. The tenant has nothing to gain by delaying the repair date if the tenant’s obligation to pay the rent doesn’t depend on the repairs being made.
Get Tenant to Withdraw DHCR Service Complaints
If the apartment is rent stabilized or rent controlled, check to see if the tenant has filed any service complaints with the Division of Housing and Community Renewal (DHCR) for the same items the tenant is complaining about in housing court. If so, ask the tenant to agree to withdraw those service complaints and put that agreement in the stipulation.
Also, give yourself the right to submit the stipulation to the DHCR. Then automatically submit a copy of the stipulation to the DHCR. This way, the DHCR has notice of the withdrawal even if the tenant neglects to act. When you submit the stipulation to the DHCR, include a cover letter asking the DHCR to dismiss the tenant’s service complaint.
If the stipulation is approved by the housing court judge, the DHCR will probably accept the withdrawal and dismiss the case. But the DHCR probably won’t dismiss the case if the tenant claims that you never made the repairs.
Sample language. Here’s an example of what you can say in the stipulation. Make sure you set a deadline for the tenant to withdraw the complaint; identify the complaint by its DHCR docket number; and get the right to submit the stipulation to the DHCR:
The tenant agrees to withdraw by Dec. 31, 2016, his reduction in service complaint filed with the Division of Housing and Community Renewal (DHCR) and assigned DHCR Docket No. 123456, as well as any other related service complaints. The landlord may submit this stipulation to the DHCR.
Get Tenant to Pay Part of Rent Owed Up Front
In most stipulations, the date for repairs is set before the date the tenant must pay the rent owed. But sometimes a lot of back rent is involved and you’re not sure the tenant has the money to pay it. In this situation, try to get the judge to agree to have the stipulation state that the tenant will pay part of the back rent before you make any repairs.
For example, say the tenant owes $2,500 in back rent. Get the tenant to agree to pay $1,000 by a specified date in the immediate future. Also, agree to make the repairs at some point after that date. Finally, have the tenant pay the rest of the back rent by a specified later date. With this schedule, you get some assurance before you make the repairs that the tenant has the money to pay the back rent. You won’t waste your time on repairs only to find that the tenant won’t pay you anyway.