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Steven Warren Smollens
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Steven Smollens’s Answers

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  • What legal action does sandra have in both contract and tort

    On October 14th 2015 Sandra purchased a timer for her living room lamp so that it would come on in the evening while she was out working night shifts. Sandra bought the timer from Jim’s Hardware Store Inc. The timer was manufactured and designed b...

    Steven’s Answer

    Dear friend of Sandra:

    Fortunately, at least as set out in this first year law school question, Sandra suffered no economic loss and no loss of personal property. While the fire gutted the home,the home owner has insurance for that loss.

    Sandra should alert her home owner insurance since the home owner likely will have her blamed for causing the fire with a defective lamp.

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  • Tenant wants to remove installed items. Any options?

    Tenant is threatening to remove all installed alterations such as air conditioner units, washer/dryer, and a backyard installation as well as other installed improvements when he leaves. Is this resolved in housing court, or civil court? Can housi...

    Steven’s Answer

    Dear Bronx Property Owner:

    Whether those installed alterations were made by you, a prior tenant, or this tenant, unless the lease specifically provides the right to the tenant to wreck your house, your tenant has overtly threatened to commit waste and destroy your property. This is a dangerous situation and speed my spell out if you prevent this assault or enable the tenant to ripe apart your home and have to deal with your insurance for the loss.

    Housing Court does not decide who owns installed improvements unless the landlord is in process of evicting a tenant for improper removal of installed improvements. You need as pointed out by the answering attorney an injunction and a TRO. This is not a do it your self project.

    I have the vague sense I have read this question before when the backyard installation was described as an illegal floating deck.

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  • What happens when a tenant works/ or does jobs for a landlord? Are there any examples of laws or & ect that can be cited?

    If a landlord asks a tenant to do work i.e.- Clean another property of the landlords Or even another unit in which the tenant is renting, for money or money off the rent Without this agreement in writing. What is this called? How does the LAW cal...

    Steven’s Answer

    Dear Providence Tenant:

    I am an attorney licensed to practice law in New York State. I do not practice law in Rhode Island. If by chance you are inquiring about general Landlord and Tenant law, I have to agree with the prior answer by the attorney in your State. Generally, landlord and tenant relations are established by a written agreement (a lease, for example) and by an oral rental agreement (a verbal lease). As a general rule, the terms and conditions of a verbal lease are difficult to prove. In the event of a dispute, a judge or a jury has to weigh the evidence and the testimony to determine the "agreement." A written lease, by contrast, is provable by the paper it is written on. The lease will or should always contain a provision preventing either the landlord or the tenant (or both together) altering or changing the terms of the written lease without another written agreement signed by both landlord and tenant. That lease clause and general rule of contracts is designed to prevent a party to a contract (a lease) from proving other terms that are verbal and not written down. When a written agreement exists, private unwritten agreements changing those terms do not do so and are not provable in case of a dispute.

    Working off the books for your landlord is the same as anyone working off the books for an employer. Without any written evidence of the agreement of pay for labor performed a dispute becomes incapable of proof. If a tenant decides to work for a landlord in exchange for a rent reduction, the value of the labor is their own agreement (such as $10.00 per hour, or $100 per job). Generally, the "law" does not intrude except for minimum wage and other rules created by a state's Labor Law and US law. So making a private agreement to work for a landlord that the tenant and landlord don't write down is difficult to prove exists let alone is in compliance or not with Labor Law (State, Local and US.)

    When a tenant seeks to prove a reduction in rent based on an exchange of value generated by labor for the landlord, the tenant faces an uphill battle to prove an agreement that modifies or alters the terms for rent in the written lease. Let's say the rent is $400 per month and that rent is stated in the written lease (that likely provides for no offsets or reductions based on anything), and the verbal agreement is $100 per day of work. After four days, the landlord has wiped out the rent obligation for that month. How would the tenant prove that he does not owe rent when the landlord sends a rent bill for the full amount? In a Landlord and Tenant lawsuit over the unpaid rent the tenant may try to assert a counterclaim for unpaid wages, but the court would likely sever that counterclaim. If the tenant asserts an affirmative defense the rent was paid because the tenant worked for the landlord for four days and so earned $400 to take off the rent, how would the tenant prove that agreement if the landlord says it isn't so, and the tenant has no objective proof that the tenant did the work and the landlord agreed to pay the tenant or reduce the rent by the agreed value of the tenant's labor.

    That's the reason the lawyer answered your question with a get it in writing response. So stated another way: The unwritten agreement is called an oral contract. If that contract is intended to change the terms of a written contract (a lease) the law of Landlord and Tenant will not allow that to happen as well as the general law of contacts. Your State may have a law similar to the New York Statute of Frauds where certain forms of agreement must be written or the agreement is not provable. At a minimum your labor would have the value of minimum wage or local prevailing wage for unskilled labor in your community. Your landlord may be in violation of State Local and USA law hiring you to perform labor off his books and obviously off yours. The reason people write out their agreements is to avoid trouble when not satisfied with end results.

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  • Can a landlord in NYC have a restriction not allow an air conditioner?

    My friend rents a room in Washington Heights, and this weather has been brutal. Landlord will not allow an air conditioner. Is this legal? Thanks

    Steven’s Answer

    Dear Friend of a New York Tenant:

    Your friend may not have a per se right to have a window air conditioner. NYC rules dictate a window air conditioner must have proper support from below and on the sides, independent of the window itself so that the air conditioner may remain secure in its mounted location even with the window wide open.

    Check this out : http://www1.nyc.gov/site/buildings/homeowner/installing-air-conditioning-unit.page

    If your friend has a lease that written agreement likely will determine any right to install and mount an air conditioner. The apartment must have a proper circuit for handling the current drawn by the AC unit. Older buildings typically do not have adequate wiring. If your friend has his own electric account he will carry the cost of the electricity consumed by the AC. If he does not, that means some one else will have to carry the burden of the extra electric load.

    Many written leases do not allow a tenant to install any type of appliance (beyond the appliances provided by the landlord) so your friend's lease may require the landlord's permission.

    NYC law does not compel a landlord to provide a dwelling with an air conditioner: See: http://www1.nyc.gov/nyc-resources/faq/490/is-a-landlord-required-to-provide-air-conditioning

    You could read more about AC in the USA here:

    https://www.furnacecompare.com/air-conditioners/is-air-conditioning-a-right.html

    If your friend does not have a lease, and is not a rent regulated tenant, he should know that the landlord could choose to end his tenancy at any time and without need for a reason with nothing more than a properly served written thirty day tenancy termination notice.

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  • I must evict my month-to-month tenants with children from a house where their unit is legal, but the basement where i live isn't

    For the past two years renting the top two floors of my house to a family with children. The basement, where I have been living, is not a legal unit. For the short time this tenants have been living there, the house has deteriorated exponenti...

    Steven’s Answer

    Dear New York Property Owner:

    I will start off suggesting that the many serious issues you have deserve taking time to hash over with an attorney in a confidential and privileged setting whether in person or by telephone.

    To start, your statement is not clear that the family renting the top two floors of the house rents two apartments used as a single family unit (one lease for both floors or for both apartments) or one apartment that takes two floors. You are not clear whether your house is a legal one family, two family or three family (a multiple dwelling. If the top two floors are two apartments and those apartments are the only legal apartments in the building using the basement as a residence flipped your building from a legal building (assuming the legal two family is registered with HPD) toward an illegal three-unit multiple dwelling, that you cannot properly register since the basement unit is not legal for for use as a residence. In Manhattan and The Bronx, an illegal unregistered multiple dwelling will stop you in Housing Court from succeeding suing the tenant for rent.

    Your tenants have you over a barrel with a chance to force you out from your own home because your place in the house is not legal to live in (so-you-say).

    You describe behavior by your tenants that ordinarily would encourage a property owner with an eye on the value and integrity of the structure to use a legal process to evict the tenants who damaged the property due to as you say "abuse and extremely unsanitary habits." What spirit moves you to allow a tenancy to continue after the end of the lease?

    The inspector cannot sue you but you can level a significant violation for the use of the basement not allowed by the Certificate of Occupancy. You will need a very special lawyer if illegal use violations are found by the inspector. Each type of these violations carries a maximum penalty (fine) of $25,000. You may escape the worst of the punishment because you took the risk of living in an illegal and unsafe home rather than exploit a tenant. But if you move out and leave your home in the control of the tenants you claim caused exponential deterioration, what do you think would happen.

    So start making calls to lawyers. You have no magic bullet solution, You will need to commit to using a lawyer.

    If your legal two family home is in Manhattan or The Bronx, your use of a space in the

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  • Will I be required to repay rent on a basement apartment?

    My landlord,who is also my aunt, has filed a petition of non payment proceeding against me. The 2 bedroom "apartment" is in the basement or cellar ( it is completely underground) with no windows or ventilation in any rooms, and directly next to t...

    Steven’s Answer

    Dear North Babylon Tenant:

    Perhaps you may think that the Town should check out the death trap your Aunt believes is worth rent and give the code enforcement officer a chance to decide to condemn this hole in the ground as unfit for human use.

    Look. There is a touch of welfare fraud if you fudged a fictional rent so you could have income but you believed you never had to turn over the money earmarked for the shelter allowance and pay rent.

    Now its possible that had you asserted your legal rights from the start that your home would have received a vacate order. Generally a tenant of a space as unfit for human use as you described cannot fetch rent; but how would you explain you had an agreement to pay rent to your Aunt for living in cellar space?

    Why are you even fighting to stay in a place where you may drown from a sudden down pour or be asphyxiated from invisible odorless carbon monoxide from the furnace.

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  • How serious is it if we miss the Cure Date on an eviction Petition from our landlord?

    Our landlord files frivolous lawsuits against us, including one this year. The landlord demanded past rent amounts, two of which were unfounded. We thought all of the demands were unfounded, but realized that three months' rent (which had been sen...

    Steven’s Answer

    Dear New York Tenant:

    A landlord should not use a notice to cure for a rent default in a residential tenancy.

    A demand to pay rent (the NY written rent demand or three day demand to pay rent) is required prior to starting a nonpayment proceeding. A notice to cure is a condition precedent to termination of tenancy and commencing a holdover proceeding.

    If the landlord does start a nonpayment proceeding without making a rent demand you will have a defense to the lawsuit.

    You appear to also have defenses that are based on a breach of the warranty of habitablity but those defenses are not usually allowed by judges in a holdover proceeding.

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  • My tenant has claimed squatter rights. how can i challenge this?

    He has lived with me for 10 years but we have fallen out and he is refusing to move.

    Steven’s Answer

    Dear New York Landlord:

    Your tenant is using an old-fashioned expression. New York State law requires a formal eviction proceeding (in NYC that is in the NYC Housing Court) for any person in occupancy for at least thirty days. So your ten year tenant surely fits into that definition of who is entitled to a court proceeding before an eviction.

    If you lived together in the same apartment but you are the person paying rent to the landlord and you are not a family you likely must first end the month to month tenancy before starting the court case.

    Go look up NYC Housing Court Holdover Proceeding

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  • Tenant

    I'm a landlord and I think a prospective tenant gave me false financial information. My options?

    Steven’s Answer

    Dear New York Property Owner:

    Do not make an offer of a lease if an applicant to rent gave false information.

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  • Can I start a holdover while a nonpayment judgment and warrant is on appeal with a stay of all proceedings pending appeal?

    I inherited a tenant that stopped paying his rent. I did a nonpayment action and received a money judgment and warrant of eviction. The tenant appealed to the higher appellate court and received a stay pending appeal and has to pay use and occupan...

    Steven’s Answer

    Dear Plainview Property Owner:

    It would be the same local court. Why did the tenant secure a stay? What is the basis for the holdover proceeding?

    Conceivably, if you have a ground for a holdover why would you bog yourself down in defending an appeal in a nonpayment case where you have risk of losing.

    I am changing the topic to Landlord and Tenant.

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