Case of the Week: Removal of Storage Bins Was De Minimis

LandlordsNY Member

LandlordsNY Member

What we have here is another Cinderella post. No, it’s not a reference to the character from the fairy tale; it’s a reference to the hair metal band responsible for one of the most memorable power ballads from the late eighties, “Don’t Know What You Got (Till It’s Gone).” However, while the song is about the heartache that comes after a relationship has ended, this post is about your tenants and how they will become enraged should you take away even something minor.

When you remove a service or a perk that could be considered an ancillary service, no matter how insignificant you may feel it to be, your tenants will notice. More importantly, they will demand that either it be returned or you offer something else in its place. For stabilized tenants, it is their legal right in many instances, and even in cases where they have no legal ground to stand on, they will still grumble or even file a complaint with DHCR.

Sometimes, however, maintaining the status quo may not be economically feasible, and you may have to cut some services. In many cases this may result in a rent reduction. However, there is a certain class of conditions that are regarded as de minimis. You are legally allowed to discontinue these services without running afoul of the law for a failure to maintain services. A long, but not exclusive, list can be found under section 2523.4(e) of the Rent Stabilization Code.

DHCR is supposed to be familiar with this list. However, sometimes they don’t bother reading it. A recent Petition for Administrative Review filed by a Queens landlord centered on whether or not storage bins in the basement of the building were de minimis. The the court initially held that they were not, and that the landlord’s action constituted a reduction of services warranting a reduction in rent. The landlord appealed, and that appeal was rejected. The landlord then filed an Article 78 proceeding in Supreme Court, and the judge there ruled that the decision to reject the landlord’s appeal was “arbitrary, capricious and against the weight of the evidence.” The appeal did have merit. A subsequent petition filed by the landlord was eventually granted on February 17 of this year, and the landlord was awarded arrears for the previously ordered rent reduction. The storage bins, given the situation, were considered to be de minimis.

What to take away from this: There are a few things. Number one, if you want to keep the peace, maintain the status quo. Second, if you are going to make any changes, consult the Rent Stabilization Code, contact DHCR, and make sure every last bit of paperwork is in order. Finally, if you do end up in court, as you inevitably will, keep in mind that filing an Article 78 in Supreme Court, while far more costly than filing papers in the lower courts, will allow you to bring your case before a judge who may have less of a kneejerk reaction to issues of landlord-tenant law.

In the Matter of the Administrative Appeal of 867 Onderdonk LLC

Index: AV110030B

Order filed on February 17, 2017

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