The Federal Debt Collection Practices Act Applies????

It was only a matter of time before a tenant sued a landlord’s attorney for violating the Federal Debt Collection Practices Act (“FDCPA”)¹ by sending a lease termination notice which did not, among other things, contain the “Miranda”-type warning required by the FDCPA². Romea v. Heiberger & Associates³ was just that eventuality.

In Romea, the landlord’s attorney served a three-day notice on the tenant advising that if back rent was not paid she would be evicted.

The tenant sued the landlord’s attorney in federal court claiming that the notice violated the FDCPA in that, among other things, the notice did not advise the tenant that (i) the notice was an attempt to collect a debt; and (ii) the tenant had thirty (30) days in which to dispute the claim. The defendant law firm responded that (i) since the three-day notice was statutorily required to be served upon a tenant, it was not a “communication” within the meaning of the FDCPA; and (ii) unpaid rent was not covered by the FDCPA since it did not involve a consumer credit transaction.

The federal court disagreed with the defendant law firm holding that the FDCPA was meant to encompass consumer obligations to pay money for personal or household purposes “without regard to whether the underlying transactions involve the extension of credit or the deferral of payment.” In addition, the court held, a communication within the FDCPA includes a three-day notice since it seeks the payment of a debt.

Consequently, Romea is just one more reason why a landlord should send out its own predicate notices since the landlord, pursuing its own debt, is not a “debt collector” within the meaning of the FDCPA. The alternative, of course, is to make sure the attorney complies with the act.

No, You Can’t Just Change the Locks...Really.

In Stanley v. Bernstein⁴, the landlord and tenant had entered into a lease from September, 1995 through August, 1996. In accordance with the lease, the tenant paid a security deposit of $2,500 and paid rent monthly through May, 1996. Notwithstanding the foregoing, the landlord changed the locks on May 23, 1996 after it saw the tenant move furniture from the premises and, based on that fact, determined that the tenant had breached the lease. At no time had the tenant advised the landlord that the tenant intended to vacate the premises.

The court held that changing the locks constituted an illegal eviction since the tenant had paid the rent through May of 1996 and no breach existed at the time that the landlord had changed the locks.

Obviously, even if there had been a breach at that time, the landlord is still not permitted to simply change the locks on the premises but must commence a summary proceeding after the service of the appropriate predicate notice.

It’s Probably Not A Landlord/Tenant Relationship

In Bascome v. Turano⁵, a summary holdover proceeding, the petitioner alleged that the respondent was a vendor-in-possession holding over without the permission of the petitioner.

The respondent moved to dismiss claiming that (i) she was a month-to-month tenant; (ii) the landlord had accepted rent in the amount of $2,250; and (iii) the landlord was required to serve a thirty (30)-day notice rather than the ten-day notice which the landlord had served.

The court agreed with the petitioner in that the premises were to have been delivered vacant upon transfer of the deed and the contract contained an escrow provision requiring the payment of $75/per day that the vendor remained in possession. Consequently, the court held, the monies received by the petitioner did not constitute rent which would have resulted in a month-to-month tenancy but payments for occupancy pursuant to the escrow agreement. Holding that the ten-day notice was all that was required to be served, the respondent’s motion to dismiss was denied.

The Lease Will Not Control.

In Knightsbridge, L.L.C. v. Soups & Breads, Inc.⁶, a holdover summary proceeding, the respondent moved to dismiss claiming that the landlord had not served the predicate notice in accordance with the provisions of the lease. The court held that where service provisions in a lease are in conflict with the statutory requirements of the Real Property Actions & Proceedings Law (“RPAPL”), the RPAPL must control unless the parties specifically state in the lease provision that they intend that the lease provision to supersede the statutory provisions of the RPAPL.

No Signature? Bad Luck!

In Anastasia Realty Co. V. Lai⁷, the court granted the respondent’s motion to dismiss because the predicate notice served on the respondent was unsigned. The unsigned notice, the court held, was defective because it was ambiguous and equivocal.

If No Constructive Eviction, Then What?

In West Broadway Glass Company v. I.T.M. Bar, Inc.⁸, the landlord appealed from the Order of the Appellate Term of the Supreme Court, First Department which dismissed the petition in a commercial non-payment proceeding.

Severe water/sewer problems existed from the commencement of the lease in October, 1993, which problems had interfered with the tenant’s renovation and delayed its opening as a bar/restaurant. Rent abatements were negotiated through October, 1994 but the problem persisted. The non-payment proceeding sought the recovery of $18,675 in rent accrued since the last stipulated abatement. The case went to trial on the tenant’s affirmative defenses of constructive eviction and breach of lease.

The court held that no constructive eviction existed because the tenant never abandoned the premises. Notwithstanding, the trial court noted that there was a breach of the lease by the landlord because the landlord leased premises it knew to be untenantable at the time leased. Though such a breach does not entitle a tenant to full rental abatement, the Appellate Division held, (since the tenant is still responsible to pay rent) the tenant should have received an abatement equal to the difference between the value of the leased premises as they were intended to be leased and the value as a result of the breach.

Criminal Trespasser? What Landlord Liability To Tenant?

In Norma Burgos v. Aqueduct Realty Corp.⁹, the Appellate Division once again addressed the issue of landlord liability when a tenant is assaulted on the landlord’s property. In Norma Burgos, the plaintiff commenced an action against the landlord to recover damages for injuries sustained when she was assaulted by two men in her fourth-floor apartment.

The plaintiff alleged that two men entered her apartment and assaulted her when they pushed into her apartment as she opened her apartment door to leave. She further alleged that the landlord was negligent in that it failed to provide adequate security since the door locks and intercom system at the building were broken at the time of the incident.

The defendant moved for summary judgment dismissing the complaint on the ground that since the plaintiff was unable to identify her assailants and since there were no witnesses, she was unable to meet her burden of establishing that the alleged lack of security was the proximate cause of her injuries. The defendant claimed that the plaintiff had not made out a prima facie case that the assailants were intruders who had gained entry because of the alleged defective locks, rather than tenants or guests of tenants.

In response, the plaintiff alleged that she knew all the tenants in the building and was sure that the assailants were not tenants. She also alleged that (i) the building had been the scene of many past crimes, of which the defendant was aware; and (ii) the defendant was also previously aware of the broken locks on all the access points to the building and of the broken intercom system.

The Supreme Court denied the defendant’s motion for summary judgment; it found that the plaintiff had presented sufficient circumstantial evidence to raise an issue of fact as to whether the perpetrators were uninvited intruders.

The Appellate Division reversed the Supreme Court and held that a landlord has a “duty to take minimal precautions to protect tenants from foreseeable harm” including harm from criminal activity. Nonetheless, if a tenant is injured by criminal activity in her building, the landlord will not be liable unless its alleged negligence in maintaining the security of the building was the proximate cause of the tenant’s injuries.

In the absence of proof that the assailant was an intruder who entered through a negligently unlocked door, rather than another tenant or tenant’s invitee, the Appellate Division held, there was insufficient evidence of proximate cause to defeat the landlord’s motion for summary judgment.

The Appellate Division distinguished the present case from Jacqueline S. v. City of New York¹⁰ because in Jacqueline S. the plaintiff was able to establish that the building had a long history, known to the Housing Authority, the police and the landlord, of forcible rapes and robberies caused by the unsecured entryways. In addition, the defendant in Jacqueline S. did not argue that the plaintiff’s assailants might have been a tenant or an invitee of a tenant.

Consequently, the Appellate Division held that where the defendant’s summary judgment motion disputes plaintiff’s contention that the assailant was an intruder, plaintiff’s opposition will fail unless she alleges more than just defective security precautions and a history of crime in the building.