Wednesday, November 25, 2009

LANDLORD/TENANT MATTERS IN NASSAU COUNTY

As a follow up to yesterday's blog, I want to thank some of the attorneys who have discovered the following cases and law:

Paragraph 5 (e) of the HUD Tenancy Addendum (available at http://www.hud.gov/offices/adm/hudclips/forms/files/52641-a.pdf ) provides:

"The owner may not charge or accept, from the family or from any other source, any payment for rent of the unit in addition to the rent to owner..Rent to owner includes all housing services, maintenance, utilities and appliances to be provided and paid by the owner in accordance with the lease."

Does this supersede provisions in the lease that permit the landlord to collect late fees or legal fees from the tenant? One helpful case from the Second Department is Spring Valley Homes Assoc. v Logan, 2003 NY Slip Op. 51224(U), *3-4, 2003 WL 22038359 (App Term, 9th & 10th Jud Dists 2003), citing 42 USC 1427f (a) (1). In that case, the Appellate Term held that "[e]ven where there is an agreement between the parties providing for the recovery of attorney's fees as 'additional rent', a landlord is not, under the statutory scheme, entitled to collect same from a Section 8 tenant in a summary proceeding."

The Nassau County District Court already decided Douglas v Nole, 20 Misc 3d 1119(A), 2008 NY Slip Op 51394(U) (Nassau Dist Ct 2008), published online at
http://www.nycourts.gov/reporter/3dseries/2008/2008_51394.htm, in which the court held:

"Finally, in her petition, the Petitioner requests reimbursement for legal fees as "additional rent." However, this Court finds that approval of attorney fees is improper. According to Community Properties v. McCloud, 2003 NY Slip Op 51088(U)[App Term, 9th & 10th Jud Dists], supra);"[A] landlord may not collect costs, penalties and other non-rent items as "added rent" from a Section 8 benefits recipient unless specifically provided in the Section 8 lease" (citing Matter of Binghamton Hous. Auth. v. Douglas, 217 AD2d 897, 898 [NY App Div 3rd Dept 1995]; Porter v. Chester Hous. Auth. v. Turner, 189 Misc 2d 603, 604 [NY App Term 2nd Dept 2001].)"

But note that Spring Valley Homes Assoc. v Logan, decided a month after Community Props. v McCloud by a panel including two of the three judges in the earlier case, went further by disallowing any recovery of attorney's fees in a summary proceeding, regardless of what the lease provides, citing the Section 8 statute. As you are aware, many Section 8 housing recipients are single/divorced/separated mothers who cannot make ends meet. Thus, a ruling that any Section 8 housing, whether a project or voucher program, cannot have a lease which provides for late charges or legal fees will be extremely helpful in attempts to resolve their rent issues.

No comments:

Post a Comment