Stay Vigilant to Minimize Heat and Hot Water Complaints

Heating season is fast approaching, and we want to remind you of the temperatures you are legally required to maintain. Heat and hot water complaints probably will be the most common type of service complaint you will deal with this winter. According to statistics compiled by the Department of Housing Preservation and Development (HPD), there were more than 172,000 complaints about lack of heat from tenants last winter. In addition, 883 of the owners who failed to provide heat last winter were repeat offenders.

This season, owners should be aware of increased penalties for heating violations. In March, a bill that toughens penalties for owners who violate heat and hot water requirements was signed into law. Previously, an owner would be hit with a $500 fine for the first violation and a $1,000 daily fine for each subsequent violation—but the fee would reset to $500 each Jan. 1. The new law closes that loophole so the fines don't reset every new year. (The law also renewed the city's authority to sell liens against homeowners with unpaid water bills, but included new protections for New Yorkers in financial trouble. The law also lets the city sell liens against owners who don't pay for repairs on their buildings.)

If you don't stay on top of heat and hot water service complaints this winter, you may face rent cuts along with the increased fines. To help you follow the law and defend against frivolous complaints, we'll explain the heat and hot water requirements required by law and provide you with common defenses to heat and hot water complaints.

Heat and Hot Water Requirements

Heat season runs from Oct. 1 through May 31 each year. If your building has a central heating system, you must provide heat during the season as follows:

• Between the hours of 6 a.m. and 10 p.m., whenever the outside temperature falls below 55 degrees Fahrenheit, you must keep tenants' apartments at a temperature of at least 68 degrees Fahrenheit.

• Between 10 p.m. and 6 a.m., whenever the outside temperature falls below 40 degrees Fahrenheit, you must keep apartments at a temperature of at least 55 degrees Fahrenheit.

For hot water, either state law or city law covers your building, depending on the building's size and age. If state law covers the building, you must provide hot water of at least 120 degrees Fahrenheit in every bath, shower, washbasin, and sink 24 hours a day, every day of the year. If city law covers your building, you must provide hot water of at least 120 degrees Fahrenheit in every bath, shower, washbasin, and sink between 6 a.m. and midnight every day of the year.

State law covers all buildings that are three stories or more in height, that have three or more apartments, and that were built after April 18, 1929, and before Jan. 1, 1951. State law also covers all buildings with three or more apartments built after Jan. 1, 1951.

However, owners who are exempt under the state laws may be covered under local law. City law covers all buildings with three or more apartments built before April 18, 1929. City law also covers all buildings that have less than three stories, that have three or more apartments, and that were built after April 18, 1929, and before Jan. 1, 1951.

No Rent Cut if Problem Is Fixed Before Tenant Files Complaint

A situation may occur this winter in which your heating system breaks down. And although you quickly fix the problem, the apartment or building may be without heat or hot water for a short time. In the event of a heat deficiency, a tenant should first attempt to notify the building owner, managing agent, or superintendent. If heat is not restored, the tenant may call 311. And when an operator receives a complaint, HPD staff attempts to contact the building's owner or managing agent to get heat or hot water service restored.

Before an inspector is dispatched to the building, HPD will call the tenant back to determine whether service has been restored. If service has not been restored, an HPD inspector is sent to the building to verify the complaint and, if warranted, issue a violation. HPD fields a team of inspectors working in shifts, situated in offices throughout all five boroughs to provide coverage 24 hours a day, 365 days a year. Meanwhile, the tenant may have complained to the DHCR of a decrease in service. The key to avoiding a rent cut in this situation is to show that service interruptions have been minor.

In this case, you can argue that even if there was a heat and hot water problem, it existed only briefly, resulted from necessary maintenance to the heating system, and was quickly corrected. As a result, you can argue that there was no decrease in service warranting a rent cut.

In one case, a group of rent-stabilized tenants complained of a reduction in services. They claimed that they had no heat or hot water for two weeks. The District Rent Administrator ruled against the tenants, who appealed and lost. The tenants admitted that, by the time they filed their complaint, heat and hot water had been restored. So the District Rent Administrator couldn't reduce tenants' rent and properly dismissed their complaint [419 East 70th Street, October 2010].

If you are able to fix the heating deficiency at any point before the inspector verifies the complaint, you'll be able to avoid a rent cut and fine. In one case, a rent-stabilized tenant asked for a rent cut because she had no heat or hot water. The owner fixed the problem, but the tenant claimed that there were still days when she had no heat or hot water. However, the inspector found that heat and hot water were adequate on a December inspection date. The outside temperature was 3 degrees, and the temperature inside the apartment was 71 degrees, and the hot water temperature was 110 degrees [Jasphy, December 2009].

The DHCR consistently rules that minor heat and hot water service interruptions that are quickly fixed don't amount to a decrease in service. You should be able to show that you restored services before the DHCR inspects. You can submit any repair bills, canceled checks, and receipts for repair work. If you can, get a signed affidavit from the repairman of the work done or a signed statement from tenants that heat and hot water have been restored. By taking these steps, you should be able to avoid a rent cut.

Check Complaint Was Filed During Heating Season

If your tenants have filed a service complaint claiming that you're providing inadequate heat, check to see when the complaint was filed with the DHCR. If it was outside the heating season—that is, anytime on or after June 1 through Sept. 30—the DHCR should dismiss the complaint.

A tenant can raise a claim about inadequate heat in three types of complaints—those about reduced individual apartment services (Form RA-81), those about reduced building-wide services (Form RA-84), or those about heat and/or hot water (Form HHW-1). Whatever the type of complaint, look at the first page. It should have a DHCR stamp indicating the date it was filed.

If the date-stamp is illegible, you can also find out when the complaint was filed by checking the docket number. The first letter of the docket number tells you the year in which the complaint was filed. The letter “A” means it was filed 1986. For complaints filed in 2011, the docket number will begin with the letter “Z.”

The second letter tells you the month in which the complaint was filed. The letter “A” means it was filed in January, the letter “B” means February, the letter “C” means March, and so on. If the second letter of the docket number is “F,” “G,” “H,” or “I” (indicating the months of June, July, August, or September), the complaint was filed outside of the heating season. If you received a heat complaint with a filing date that falls outside of heating season, you can ask the DHCR to dismiss it.

However, if the complaint raises other service problems besides inadequate heat, such as a leaky roof or a bedbug infestation, the DHCR will process the complaint, even if it wasn't filed during heating season. But it won't consider the inadequate heat claim. Instead, it will tell the tenant to refile that claim during the next heating season.

If you get an out-of-season heat complaint that raises other service problems, point out in your answer that the DHCR should dismiss the inadequate heat part of the complaint, but be sure to address the rest of the claims in the complaint.