Take Three Steps to Minimize Fines if Boiler Breaks Down

If your building’s boiler breaks down this winter, you should be ready with a game plan to avoid fines, city-imposed repair charges, or rent cuts. You should be prepared to respond quickly and have your boiler repair company’s contact information handy.

You could be fined if tenants complain to the city’s Department of Housing Preservation and Development (HPD) about no heat or hot water due to a boiler breakdown. And if HPD thinks you’re not fixing the problem fast enough, it can send in a repair crew from its Emergency Repair Program (ERP) and charge you for it. To make matters worse, you could end up with a building-wide rent cut if your tenants complain to the state’s Division of Housing and Community Renewal (DHCR) about the lack of heat or hot water.

Owners have further incentives this heat season to quickly respond to boiler problems since the city council has increased the penalties for heat and hot water violations. Starting this heat season, if a heat violation is the first such violation issued during the current or prior heat season, or a hot water violation is the first such violation issued during the current or previous calendar year, an owner must pay a $250 payment with a timely Notice of Correction.

For a third or any subsequent inspection that results in a heat violation within the same heat season (October through May) or for a third or any subsequent inspection that results in a hot water violation within a calendar year, HPD will charge a fee of $200 for the inspection. In addition to this fee, the owner is still also subject to any civil penalties that may be imposed by the housing court. These civil penalties are $250 - $500 per day for each initial heat or hot water violation and $500 - $1,000 per day for each subsequent violation at the same building during the same and/or the next calendar year from the initial violation. If the owner fails to pay the court-ordered civil penalties, HPD will enter a judgment against the owner and the property and seek to enforce that judgment.

Take Three Steps When Boiler Breaks Down

Fortunately, you can take steps to minimize the fallout from a boiler breakdown. Here are three steps you should take:

Step #1: Keep tenants informed. Most tenants won’t file a heat or hot water complaint if they know that the owner is working on the problem. Tenants will probably contact the super if there’s no heat or hot water. So be sure to inform the super of all the steps that are being taken to fix the boiler and your super may be able to dissuade tenants from complaining to HPD.

Step #2: Get repair crews in promptly. Getting repair crews in promptly can help you avoid HPD violations and DHCR-ordered rent cuts. There’s a lag time between when a tenant files a complaint and when HPD will send an inspector to verify the complaint. HPD is responsible for enforcing the New York State Multiple Dwelling Law and the New York City Housing Maintenance Code. After a tenant calls the city’s Citizen Service Center at 311, HPD will attempt to contact the building’s owner or managing agent to advise him that a complaint has been received.

But before an HPD code inspector is dispatched to the building, HPD may also attempt to contact the tenant to determine whether service has been restored. If service hasn’t been restored, an HPD inspector is sent to the building to verify the complaint and will issue a Notice of Violation (NOV), which directs the owner to correct the violations by a specified “Correction Date” and to certify that he or she has made the corrections by returning an attached certification form by the specified “Certification Date.” According to the Housing Maintenance Code, Class C violations such as an inadequate supply of heat and hot water must be corrected within 24 hours.

If you can prove that you repaired the boiler promptly, the DHCR shouldn’t order a rent cut for no heat or hot water. In one case, 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 (DRA) 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 DRA couldn’t reduce tenants’ rent and properly dismissed their complaint [419 East 70th Street: DHCR Adm. Rev. Docket No. YF410001RT, October 2010].

Step #3: Save proof of prompt action. It’s important to get and keep proof that you acted quickly to make repairs. Then, if you do get hit with a violation and HPD takes you to court, you can use this proof to defend yourself. You can also use this proof to defend against a tenant’s service complaint to the DHCR.

Here are some tips for collecting useful documents:

                ● Save copies of bills and receipts from your boiler service company showing that you responded immediately when your boiler went out.

                ● Ask your boiler service company for a copy of its phone log or work invoice to prove that you called immediately to get the problem fixed.

                ● If possible, get the tenant who complained to HPD or the DHCR to sign a statement saying that you immediately took steps to correct the problem and that the problem was corrected as soon as possible.

You should gather these documents right after the repair is made, and keep them in your files. Don’t wait until you’re in court or you get notice of a tenant’s service complaint. By then, it may be more difficult to get the proof you need.

In one case, a rent-stabilized tenant complained of a reduction in services based on inadequate heat in his apartment. The DRA ruled for the tenant and reduced his rent. The owner appealed and lost. The DRA relied on a heat violation placed by HPD, and the owner was unable to show any proof that the violation had been rescinded [D. Camilleri, LLC: DHCR Adm. Rev. Docket No. XG410034RO, February 2010].

Practical Pointer: Make sure you register the right telephone number with HPD.You need to make sure HPD can get in touch with you. Annual registration with HPD provides owners with an opportunity to be contacted by HPD and notified of any emergencies at the property. And early notification allows an owner to make necessary repairs and avoid the inconvenience and cost of having HPD perform emergency repairs. A phone call from HPD may be your first notice that there’s a boiler problem—and that you need to get repairs started.

Owners of all multiple dwellings with three to five units must register in October and all multiple dwellings with six or more units must register by April 1. At the time of registration, you’re required to provide the managing agent’s name and address and a telephone number within the greater metropolitan area where an owner or managing agent may be reasonably expected to be reached at all times. This phone number should be updated as needed. You must notify HPD within five days if your 24-hour emergency telephone number changes.