Opinion
SP001635.
Decided July 15, 2008.
William D. Friedman, Esq., Hempstead, NY.
Michael Wigutow, Of Counsel, Jeffrey Seigel, Nassau Suffolk Law Services Committee, Inc., One Helen Keller Way, Hempstead, NY.
Petitioner-Landlord, Verda Douglas commenced this summary proceeding against Respondent-Tenant, Bernice Nole for non-payment of rent concerning 58 Prospect Place, Roosevelt, New York. Petitioner states in her petition, dated March 24, 2008, that a Section 8 rental agreement was reached between the parties, agreeing on a monthly rent of $1,820, payable in advance of the first day of each month ($423 of which Respondent is directly responsible).
The issue concerning this Court is whether a Section 8 tenant whose participation in the Section 8 Voucher Program was terminated as a result of their own wrongdoing shall be held responsible for the full rental value of the lease (including the previous value of the Section 8 subsidy) entered into by the parties after termination of the Section 8 lease. In the case at bar, Petitioner alleges that Respondent is responsible to pay rent owed on behalf of the Department of Housing and Urban Development, hereinafter "HUD", for the months of February and March of 2008 in the sum of $2,794, as well as, Respondents own rental arrears for February and March of 2008, amounting to $846 and legal fees listed as "additional rent" calculated at $475.
DISCUSSION
The Petitioner provided the court with evidence of a March 20, 2008 letter from the Town of Hempstead Department of Urban Renewal addressed to Respondent notifying her that her participation in the Section 8 Voucher Program has been terminated. In their letter, the Town of Hempstead, asserted that Respondent had violated several HUD Regulations when she reported that her daughter and her two grandchildren were residing with her, meanwhile, the same parties were already collecting their own HUD Voucher in New York City. Accordingly, the letter clearly indicates that the Respondent has been terminated from Section 8 by grounds of fraud and misrepresentation.
Respondent avers that she is not responsible for paying the portion of the rent covered by the Public Housing Authority, hereinafter "PHA", because Petitioner's acceptance of Section 8 subsidy payments is a term and condition of the lease. Well-established precedent holds that a "Section 8 tenant agrees in the Section 8 lease only to pay the tenant share of the rent. Absent a showing by [a] landlord of a new agreement . . . a Section 8 tenant does not become liable for the Section 8 share of the rent as rent' even after termination of the subsidy." ( Vincenzi v. Strong, 2007 NY Slip Op 51534[U]) [Civ Ct, Bx Co 2007] quoting Prospect Place HDFC v. Gaildon, 2005 NY Slip Op 50232[U] [App Term 1st Dept] quoting Rainbow Associates v. Culkin, 2003 NY Slip Op 50771[U] [App Term 2nd 11th Jud Dists]; see also Dawkins v. Ruff , 10 Misc 3d 88 , 90 [NY App Term 2nd Dept 2005]; and Moshulu Associates, LLC v. Cortes, NYLJ, April 5, 2006, at 21, col. 3 [Hous Part, Civ Ct, Bx Co, Danzinger, J.].). Accordingly, since their was no agreement stipulated between the parties transferring any responsibility upon the Respondent to pay the Section 8 portion of the rent, the Respondent can only be held liable for her portion of the rent agreed to in the lease and not the delinquent amount owed by Section 8 for their share of the rent agreed to in the lease. Petitioner's remedy is to commence a holdover proceeding to evict Respondent for violating the Section 8 lease, ( see Vincenzi, 2007 NY Slip Op 51534[U][Civ Ct, Bx Co 2007], supra).
Even though the Respondent cannot be held liable for the unpaid Section 8 rent at dispute, the Respondent is responsible for paying the fair use and occupancy of the subject premise after termination of the Section 8 subsidy. In Zappala v. Caputo, 2007 NY Slip Op 51808(U), (App Term, 1st Dept 2007) the court established that "[A] Section 8 tenant who holds over after the termination of the Section 8 tenancy is responsible for the full amount of use and occupancy accruing in the period after the termination ( citing Community Properties v. McCloud, 2003 NY Slip Op 51088(U)[App Term, 9th 10th Jud Dists]); see also Schickler v. Thorpe, 2002 NY Slip Op 40106(U) [App Term, 9th 10th Jud Dist]; and Baldwin Merrick Associates v. Relles, 2008 NY Slip Op 51331(U) [Nassau Dist Ct].). Therefore, the March 20, 2008 letter from the Town of Hempstead clearly indicates that the Respondent was terminated from Section 8 on that date. Accordingly, Respondent is responsible for the fair use and occupancy of the subject premises beyond March 20, 2008. However, since such fair use and occupancy is not sought in this nonpayment proceeding, this Court is unable to award such a remedy.
Accordingly, Respondent is liable in this nonpayment proceeding for the share of the rent which totals the sum of $846 for the months of February and March of 2008.
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].).
CONCLUSION
Petitioner is awarded a money judgment of $846 which represents Respondent's share of rent owed with a judgment of possession and warrant stayed until August 15, 2008. Thereafter, Petitioner may proceed to evict Respondent forthwith.
Respondent is not liable for the Section 8 rent for the months of February and March of 2008 absent a new agreement to be liable for same. Petitioner may commence a holdover proceeding against Respondent for violating the Section 8 lease and collect use and occupancy for the period after termination of the Section 8 lease.
So Ordered: