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In this latest installment in our series, we answer some additional questions raised by New York tenants in the midst of this COVID-19 pandemic.

(Parts 1 (rent issues in the midst of COVID-19), and 2 (repairs, security deposits, move-ins/move-outs), may be found by clicking those links.)

  • What if my landlord is “rent gouging?”

Landlords are not permitted to capitalize on the crisis. If you are a rent-regulated tenant, increases are restricted and limited by local government bodies. The amounts of those increases, if any, are publicly announced, and can be found on various websites, including: https://rentguidelinesboard.cityofnewyork.us/.

If you are a market-rate tenant, you may not be charged more than the amount fixed or set by any oral or written lease agreement. If your lease is expiring, or you are a month-to-month tenant, the owner must follow certain procedures set forth in state statutes (like HSTPA), before increasing your rent.

Should those statutory steps not be followed, your rent cannot increase unless you consent to such a change by signing a new lease, paying the increase, or remaining in possession post-lease expiration (in which latter event, a landlord may bring a proceeding to evict you, and a court may require that you pay a “fair market” rent).

  • I left NYC to minimize my exposure to the virus, and now my landlord is threatening to evict me for “non-primary residence.” Should I be concerned?

If you are occupying a rent-regulated unit, you are probably familiar with the “primary residence” requirement. While there are a number of considerations which are pertinent to such an inquiry, and no one element is singularly dispositive, suffice it to note that courts will usually look to see whether or not you have actually occupied the regulated unit at least 183 days out of the year.

If a landlord suspects you are really living elsewhere, and can establish that via an array of facts and available public records (like your driver’s license, voting records, and the like), a “non-primary residence” case may be started against you (after service of an appropriate predicate notice). And, if the owner is successful, you could be evicted.

Luckily, judges have broad discretion in such cases. And given the public health emergency triggered by COVID-19, we see courts excusing absences, particularly by those who are suffering from “high-risk” factors. To compel such tenants to remain in their units and to risk possible exposure would appear to run contrary to common sense and established public health and policy considerations. While no case has yet addressed this discrete issue, we believe it is extremely unlikely that a COVID-19 related absence would count against a tenant. (With that noted, until there is definitive guidance, there is always a possibility, albeit remote, that a judge may strictly adhere to the existing standards and order that an absent tenant be evicted.)

  • Since the virus is airborne, I have heard it can be transmitted via air-ducts in multi-unit apartment buildings. What must a landlord do to curtail possible spread?

While much uncertainty still exists, experts are currently of the view that the risk of the coronavirus spreading through air-ducts and ventilation systems is very low. Nevertheless, if your building has had a COVID-19 outbreak, your landlord may, to the extent permissible or possible, install and/or replace vents and filters in the building’s ventilation system which would arguably help to remove possible contaminants.

At the very least, pursuant to a state law known as the “warranty of habitability,” landlords are legally obligated to ensure that their residential structures are safe and habitable, at all times—even in the midst of this pandemic. That arguably includes making sure that the building ventilation systems are properly maintained, and appropriate protocols are implemented to enhance or improve indoor air quality. (Landlords should also consider commissioning or implementing regular deep-cleaning and disinfecting of the building’s common areas (such as hallways, elevators, gyms and laundry facilities), in accordance with the CDC’s guidelines.)

Part 4 of the series will analyze, among other things, whether residential or commercial landlords (including co-ops) can prevent tenants, their employees, delivery people and guests from entering and/or accessing their homes or businesses.

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DISCLAIMER: As COVID-19 related developments change daily, this must be viewed as an exceptionally fluid situation. Accordingly, prior to taking any action, we strongly urge you to contact our office to ascertain whether there has been any change that would impact any recommendations made, or whether there are discrete facts or developments which would warrant undertaking a different tact or course.