Thank you for the opportunity to comment on the proposed Loft Board rules. We understand that it is very difficult to craft rules which accurately reflect the law, while finding fair solutions to the myriad problems which beset tenants in illegal buildings.
Moreover we also realize that the Loft Board is under considerable time pressure to complete the rule making process, and that the process for completing these rules is complex and involves many city agencies. That said, we hope that the Board will be guided by the merits of questions and not short term expediency. There is little long-term gain in accepting a rule that is sure to be challenged later.
Collectively and individually, tenants have expressed concerns about how the rules are currently drafted. Below is a summary of NYCLT’s requested changes to the rules.
If a tenant moved in to an eligible or covered unit after 6/21/10 it is unclear if that tenant is eligible for loft law protection under 2-09(b)(3). It currently requires some work to prove that the landlord “consented” to them being there. We request a definition of consent that acknowledges that the landlord directly taking a tenant’s rent implies consent.
Unlike other rules, the restrictions on subletting in 2-09(c)(4)(ii)(H) apply to subleases that started after the date the building was registered, rather than after the rule is finalized. So a tenant may be evicted for violating a rule that wasn’t published. We request that the rule be updated to enable the restrictions only after its enactment.
The fine for filing a harassment claim in bad faith should be much lower (say $200), because the tenant stands nothing to gain and has to pay massive legal fees. It is acceptable to keep the aggravated penalty high in case a tenant is really misusing the system.
We request that the fines for harassment be doubled. The Loft Board should be able to fine the maximum $17,500 for aggravated harassment.
Please institute a harassment fine for serving the Narrative Statement Process waiver under false pretenses. This is conduct intended to cause a tenant to surrender rights pursuant to Article 7-C.
If you agree to a notification requirement in Rule 2-12, please include a fine for not filing on time.
Please keep this rule open for comment as there are multiple references to Rule 2-01 in it.
Rule 2-11.1 contains helpful lists of examples of harassment that impacts on the tenant’s “safety” and “quality of life” – please bring this language into Rule 2-02.
Quality of life issues should also include false collections claims, frivolous lawsuits, and getting tenants to sign a Narrative Statement Process waiver under false pretenses.
It is presently unclear what constitutes severe harassment. Some guidance should be provided in the rule regarding severity. For example, if a lock is repeatedly busted or a utility is out for a period of months, does that constitute aggravated harassment?
2-10 Sale of Rights
We request that the Loft Board raise the fine for not filing a Sale of Rights disclosure document in a timely fashion. This can be used to drive out unwanted tenants in much the same way as preferential rent, without even a warning in the lease.
Please make it easier for new tenants to find out what their legal rent is & whether the rights have been sold on their unit. This can be accomplished through the notification and informative process we’re asking for in 2-12.
2-07 Sales of Improvements
2-06.2 Interim Rent Guidelines & Total Rent
Please add a clause making it clear that tenants are not liable for collections claims or holdovers for refusing to pay illegal increases.
If a landlord has charged illegal increases after June 2010, the full amount of the overcharge should be returned as lump sum or according to a schedule. Otherwise it becomes an unenforceable bookkeeping nightmare.
If possible, more guidance should be provided in what escalators and fees are fair. In particular, exorbitant fees on usage and dividing by square footage shouldn’t be allowed, and if submeters are necessary then there should be some guidelines.
2-12 Rent Adjustments
Ideally landlords should have to request a rent adjustment before receiving it. However we recognize that the Law may not allow this.
At a minimum, in order to increase transparency and accountability, please institute a notification process where the landlord has to formally notify tenants about each milestone increase, with a copy going to the LB. Please explore whether it is possible to mandate than an increase be allowed only after filing.
There should also be an easy way for tenants to inquire the LB for their legal rent.
Please institute a penalty for landlords not filing the notification in a timely manner, because asking for retroactive increases will surely be used to drive out tenants selectively.
Please keep this rule open; see General below.
Please keep Rules 2-11.1 Fines and 2-12 Rent Adjustments open for written comment until 2-01 has been published, because we don’t know how these will be affected: as noted above and also because we don’t know how no-work interacts with 2-12.