Opinion
159/2011
07-18-2011
Herb Wagreich, Petitioner, v. Frank Recino, Respondent.
Parties appeared pro se.
Parties appeared pro se.
, J.
The issue is whether a hold over Section 8 tenant, who becomes a month-to-month tenant, is liable to his landlord for both his share and the federal subsidy share of the monthly rent, when the subsidy is not paid because the leased premises are in violation of federal housing quality standards.
On June 28, 2011, the pro se Landlord brought this summary proceeding to recover possession of residential real property, the first floor apartment unit at 18 Croton Street, in the Village of Ossining (the "Premises"), and for damages for rent arrears for June 2011 in the amount of $1,000.
In defense of the summary proceeding, the pro se Tenant verbally alleged, in substance, that he should be relieved of any legal obligation to pay rent for June 2011 because the Premises are in poor condition. The Court understood this defense to allege that the Landlord had breached the statutory warranty of habitability. In every written or oral lease or rental agreement for residential premises, a landlord or lessor shall be deemed to covenant and warrant that the leased or rented premises, and all common areas, are fit for human habitation, are fit for the uses reasonably intended by the parties, and that the occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety. (Real Property Law §235-b).
The Tenant also demanded the return of a security deposit he had paid to the Landlord, which demand the Court understood was a counterclaim.
On July 7, 2011, this proceeding was tried to the Court without a jury. The Landlord, Herb Wagreich, testified on behalf of himself, and the Tenant, Frank Racino, testified on behalf of himself. The Court found each witness to be truthful and credible.
The Court's Findings of Fact
In August or September 2010, pursuant to an oral lease, the Landlord agreed to rent the Premises to the Tenant for $1,000 a month, payable on the first day of the month. The Tenant gave the Landlord a security deposit of $1,000. The Landlord and the Tenant agreed that the Tenant's occupancy of the Premises would begin on October 1, 2010.
Before the Tenant started to occupy the Premises, however, the Landlord and the Tenant agreed in writing that they would each participate in the Housing Choice Voucher Program of the U.S. Department of Housing and Urban Development ("HUD"), commonly known as the Section 8 program.
The Section 8 program was introduced as part of the Housing and Community Development Act of 1974. (42 USC §§1404-1440). Congress intended the program to provide decent, affordable housing to low-income families. Section 8 provides landlords with rental subsidies for each qualified tenant who occupies an approved housing unit. Units must meet minimal habitability standards and rent limits. Families are accepted for the program on the basis of their income: only a family whose annual income does not exceed 80 percent of the median income for the area in which the family lives is eligible. As rent, a Section 8 tenant must pay either 30 percent of the family's monthly adjusted income or 10 percent of the family's gross monthly income, whichever of the two amounts is greater. (42 U.S.C. §1437a[a][1]). A HUD-approved Housing Agency ("HA") pays the balance of the rent. This way, the family is not forced to choose between food, shelter, and clothing when allocating its limited resources. (Williams v. New York City Housing Auth., 1994 WL 323634, *2 [SDNY 1994]; Greenwich Gardens Associates v. Pitt, 126 Misc 2d 947 [Nassau Dist Ct 1984]). In the Village of Ossining, the HA is the Section 8 Rental Assistance Program.
In a Section 8 form entitled, "Request for Tenancy Approval," the Landlord and the Tenant agreed that the beginning date of the lease would be October 1, 2010, the rent would be $1,000 per month, and the security deposit would be $1,500. (See Petitioner's Exhibit 6 in Evidence.) By letter dated September 27, 2010, the Director of Ossining's Section 8 Program informed the Landlord and the Tenant that the Premises are in compliance with federal Housing Quality Standards ("HQSs"). (See Petitioner's Exhibit 1 in Evidence.) Thereafter, on or about October 1, 2010, the Landlord and the Tenant executed a written lease on a form prepared by HUD. (See Petitioner's Exhibit 7 in Evidence [the "Lease"].)
The initial term of the Lease began on October 1, 2010, and it was scheduled to end on September 30, 2011. The rent was $1,000 per month. The Lease provided for a security deposit of $1,500. At the trial, however, the parties agreed that the Tenant had paid a security deposit of only $1000.00, which the Landlord accepted.
By executing the Lease and a separate Housing Assistance Program Contract (the "HAP contract"), the Landlord, referred to therein as the "Owner," agreed to accept as rent the housing assistance payments that the Section 8 Program would pay on behalf of the Tenant. Also, by executing the Lease, the Landlord/Owner agreed to the following provision:
4. d. The tenant is not responsible for paying the portion of rent to owner covered by the HA housing assistance payment under the HAP contract between the owner and the HA. An HA failure to pay the housing assistance payment to the owner is not a violation of the lease. The owner may not terminate the tenancy for nonpayment of the HA housing assistance payment. (See Petitioner's Exhibit 7 in Evidence, page 2 of 5.)
Starting on or about October 1, 2010, the Tenant occupied the Premises. The Village of Ossining Section 8 Program began to pay the Landlord $868 monthly, and the Tenant began to pay the Landlord $132 monthly, for a total rental payment of $1,000 per month.
All was uneventful until, by letter dated March 21, 2011, the Director of Ossining's Section 8 Program informed the Landlord and the Tenant that a March 17, 2011 inspection of the Premises had disclosed seven HQS deficiencies that required corrective action in order to bring the Premises into compliance. The Landlord also was informed that the seven HQS deficiencies had to be remedied by April 17, 2011. (See Petitioner's Exhibit 2 in Evidence.) No evidence was presented at the trial proving that the Tenant had caused the seven deficiencies.
On April 1, 2011, the Landlord informed the Section 8 Program that he had decided to terminate the Lease effective on April 30, 2011, and that the Tenant had agreed to vacate the Premises by that date. (See Petitioner's Exhibit 4 in Evidence.) At the trial, the Tenant did not dispute his agreement to vacate the Premises by that date. It appears that the Section 8 Program acquiesced to the termination of the Lease on April 30, 2011 because, by a letter dated April 15, 2011, the Section 8 Director informed the Tenant that his new prospective landlord should complete a request for tenancy approval form before May 1, 2011, so that the Tenant could relocate to new Section 8 housing on that date. (See Petitioner's Exhibit 5 in Evidence.)
Despite the Tenant's agreement to vacate the Premises by April 30, 2011, he did not do that but, instead, he continued to occupy the Premises after May 1, 2011 as a hold over.
On April 20, 2011, before the Lease terminated, the Section 8 Program conducted a follow-up inspection of the Premises. That inspection revealed that two of the seven deficient HQSs had not been remedied. In a letter dated April 25, 2011, the Director of the Section 8 Program informed the Landlord and the Tenant that if those two deficiencies were not remedied by May 20, 2011, that federal regulations required the suspension, as of May 31, 2011, of housing assistance payments to the Landlord. (See Petitioner's Exhibit 3 in Evidence.)
During the Tenant's hold over occupancy of the Premises, which began on May 1, 2011, the Landlord accepted the Tenant's rent payment of $132 and the Section 8 housing assistant payment of $868. The Landlord testified, however, that, after having received a Section 8 housing assistant payment for May, he knew that he would not receive such a payment for June because of the two outstanding HQS deficiencies. In fact, for June 2011, the Director of the Section 8 Program suspended housing assistance payments to the Landlord because the Premises still did not meet HUD's HQSs. (See Respondent's Exhibit 2 in Evidence.)
The Tenant vacated the Premises on June 30, 2011.
The Court's Conclusions of Law
Simply stated, the issue is whether the Tenant is liable to the Landlord both for his share of the June 2011 rent ($132) and for the federal subsidy Section 8 share of the June 2011 rent ($868).
To resolve that issue, it is important to point out that, after the parties had terminated the Lease as of April 30, 2011, the Landlord accepted a rent payment for May 2011, from both the Tenant, as a hold over, and the Section 8 Program before the Landlord brought this proceeding on June 28, 2011. By the Landlord's acceptance of those rent payments, a month-to-month tenancy began as of May 1, 2011. (Real Property Law §232-c). That statute provides, in pertinent part, that if a landlord does not proceed to remove a tenant holding over after the expiration of the term of a tenant's lease, which term was longer than one month, but accepts rent from the tenant, the holding over will create a month-to-month tenancy and, without any other or new agreement with the landlord, the law will imply a continuance of the tenancy on the same terms, and subject to the same covenants as those contained in the original lease, except as to duration. (Logan v. Johnson, 34 AD3d 758 [2nd Dept 2006]).
As applied here, because the Landlord accepted rent for May 2011, while the Tenant was holding over from the Lease, which had a term of more than one month, a month-to-month tenancy was created for the Tenant, by operation of law, on the same terms, and subject to the same covenants as those contained in the Lease. As a consequence, the Landlord's right to a rent payment for June 2011 is limited to the provisions of the Lease. In turn, the Lease unambiguously provides the "[T]enant is not responsible for paying the portion of rent to [the Landlord] covered by the HA housing assistance payment under the HAP contract between the [Landlord and the Section 8 Program]." (See Petitioner's Exhibit 7 in Evidence, page 2 of 5.) (See also Rainbow Associates v. Culkin, 2003 WL 2004427, *1 [App Term, 2nd and 11th Jud Dist 2003]) ("A Section 8 tenant agrees in the Section 8 lease only to pay the tenant share of the rent.").
The result would have been different had the Landlord not accepted any rent for May 2011, or if the Landlord had brought a hold over proceeding before accepting rent for May. In that case, the Tenant would have been a hold over, as opposed to a month-to-month tenant, and would have been liable to the Landlord for the full amount of the use and occupancy of the Premises accruing during the hold over period. (Zappala v. Caputo, 17 Misc 3d 126(A), 2007 WL 2782330 [App Term, 9th and 10th Jud Dist 2007]; Community Properties v. McCloud, 2003 WL 21730080 [App Term, 9th and 10th Jud Dist 2003]; Heywood Towers Associates v. Hussain, 31 Misc 3d 1235(A), 2011 WL 2176528 [NYC Civil Ct 2011]; Douglas v. Nole, 20 Misc 3d 1119(A), 867 NYS 2d 16 (Nassau Dist Ct. 2008]).
With regard to the Tenant's defense that the Landlord had breached the statutory warranty of habitability, the Tenant testified and offered in evidence a photograph (Respondent's Exhibit No. 7) that the upper sash on one double-hung window in the apartment could not be lowered, but that the bottom sash could be raised. Permitting that deficiency to exist in the Premises does not constitute a breach of the statutory warranty of habitability. (See Real Property Law §235-b).
With regard to the Tenant's counterclaim for the return of the $1,000 security deposit he had paid to the Landlord, the Landlord presented no evidence entitling him to retain any part of the security deposit other than as reimbursement for unpaid rent due from the Tenant. (See Petitioner's Exhibit 7 in Evidence [the Lease & para;14]).
Based on the foregoing, it is hereby
ORDERED that the Tenant's defense to the special proceeding based on the Landlord's alleged breach of the warranty of habitability is denied, and it is further
ORDERED and ADJUDGED that the Landlord is awarded damages of $132 and a Judgment against the Tenant in that amount, which represents the Tenant's obligation, pursuant to the Lease, to pay rent for his occupancy of the Premises during June 2011 as a month-to-month tenant, and it is hereby further
ORDERED and ADJUDGED that the Landlord may reimburse himself $132 from the Tenant's security deposit in order to satisfy his Judgment against the Tenant, and it is hereby further
ORDERED and ADJUDGED that, with respect to the Tenant's Counterclaim for the return of the $1,000 security deposit he paid to the Landlord, the Tenant is awarded damages of $1000 and a Judgment against the Landlord in that amount, except that, if the Landlord satisfied his Judgment against the Tenant by reimbursing himself $132 from the Tenant's security deposit, then the Tenant's Judgment against the Landlord is reduced to $868.
This Decision constitutes the Judgment of the Court.