If you reduce or fail to maintain services in your building and a tenant makes a formal complaint to the Division of Housing and Community Renewal, they will receive a reduction in rent. Unless the service is considered de minimis (legally insignificant), this is their right under § 2523.4 of the Rent Stabilization Code. §2523.4(e) states that, for the reduction is service to be considered de minimis, a landlord must show that it has led to conditions “that have only a minimal impact on tenants, do not affect the use and enjoyment of the premises, and may exist despite regular maintenance of services.”
§2523.4(e) also provides a non-exclusive schedule of individual apartment and building-wide de minimis conditions. For elevators for example, failing to post elevator inspector certificates and failing to maintain amenities within the elevator (fans, recorded music, etc.) are considered de minimis. Also of interest (and somewhat tangential), DHCR may consider the amount of time that has passed between when the disputed reduction took place and when the complaint was filed. According to §2523.4(f)(1), “The passage of four years or more shall be considered presumptive evidence that the condition is de minimis, with such four-year period to be measured without reference to any changes in building ownership or the tenancy of the subject housing accommodation.”
A good rule of thumb is that de minimis modifications are typically aesthetic alterations as opposed to utilitarian ones. If you eliminate or reduce a service or an amenity and it can be viewed as depriving tenants of something useful, even if it was something to which tenants didn’t always have access, the DRA will find in their favor.
A case in point is a freight elevator. Even though all tenants don’t use the freight elevator regularly, they can when moving furniture. As anyone who has ever moved a piece of heavy furniture knows, getting it into an elevator is far easier than taking it up even one flight of stairs. Freight elevators can also be used, if no other elevator is available, to take handicapped individuals to higher floors in the building. Depriving them of this service is a major inconvenience.
So it was no surprise that tenants filed a complaint on February 7, 2017 when a landlord began extensive renovations on the building’s freight elevator that would deprive tenants of its use for several months. The elevator was still undergoing renovations when an inspection was conducted on May 12. Consequently, the Rent Administrator issued an order on May 26, 2017 granting the tenants’ request for a rent reduction and directing the landlord to restore the service.
The landlord appealed via Petition for Administrative Review and argued that the elevator was not intended to be used for passenger service. The Commissioner was not persuaded. The PAR was denied by an order filed on April 27, 2018.
What to take away: If you provide your tenants with anything that makes their lives tangibly more convenient, chances are it will be considered a required service. It can be something as minor as access to a freight elevator. This is especially so if one of the tenants is disabled or has a difficult time taking the stairs and regularly makes use of said elevator.
To read more about his case, click here to see what Landlord v. Tenant has to say.