Bill S1818-2013

Permits tenants heat repair expense to be set off against rent

Allows tenants the right to offset rent with payments made for the repair or service maintenance of an oil fired or other heating device where reasonable efforts were made to notify the landlord of the heating failure, the agency used is reasonably engaged in the business of making such repairs and an itemized bill for such service is provided.

Details

Actions

  • Jan 8, 2014: REFERRED TO HOUSING, CONSTRUCTION AND COMMUNITY DEVELOPMENT
  • Jan 9, 2013: REFERRED TO HOUSING, CONSTRUCTION AND COMMUNITY DEVELOPMENT

Memo

BILL NUMBER:S1818

TITLE OF BILL: An act to amend the multiple dwelling law, the multiple residence law and the real property law, in relation to tenant's right to set off against rent for payments made due to landlord's failure to supply heat in certain cases

PURPOSE OR GENERAL IDEA OF BILL: The purpose of this bill is to enable tenants throughout New York State to have their oil fired or other heating devices repaired or maintained when their landlord fails to do so.

SUMMARY OF SPECIFIC PROVISIONS: Under existing law, tenants are allowed to offset part of their rent to purchase fuel oil because of an owner's failure to supply this oil. This bill would extend these provisions to allow tenants to contract for the repair and maintenance of oil fired or other heating devices. Tenants would be eligible to contract with a repair and maintenance service agency, and would obtain documentation of work done from such agency to back up any rent withholding claim. The Department which enforces these provisions must:

1) maintain a monthly index reflecting the range of prices charged for emergency repair and maintenance of oil-fired and other heating devices, in addition to the cost of parts, equipment and labor; and

2) maintain and update a list of service agencies that have agreed to provide services in such circumstances.

EFFECTS OF PRESENT LAW WHICH THIS BILL WOULD ALTER: Amends Section 302-c of the Multiple Dwelling Law; 305-c of the Multiple Residence Law and Section 235 of the Real Property Law.

JUSTIFICATION: The Multiple Dwelling Law and the New York City Housing Maintenance Code already contain minimum heating requirements for the cold weather months, and existing law provides tenants with the power to act in place of a negligent landlord who fails to keep up the heating oil supply.

This bill would give similar and parallel protection against landlords who fail to respond quickly to a breakdown in their heating system, and give tenants the power to protect themselves from the threat to life and health such breakdowns can cause, particularly among the aged, infirm, and young children. Furthermore, buildings are often abandoned and destroyed when pipes freeze and burst due to lack of heat.

PRIOR LEGISLATIVE HISTORY: 2007: 7415 Referred to Housing 2006: 7010 Assembly Third Reading Cal. 80 2005: 7010 Referred to Housing 2004: 4033 Referred to Housing

2003: 4033 Referred to Housing 2002: 4611 Ordered to Third Reading Rules Cal. 742 2001: 4611 Referred to Housing 2000: 1692 Referred to Housing 1999: 1692 Reported and Referred to Codes 1998: 870 Reported and Referred to Codes 1997: 870 Referred to Housing 1996: 2085 Housing 1995: 2085 Rules 1994: 2040 Assembly Calendar 1992: 1090 Housing 1990: 511 Third Reading Rules Cal. 1988: 1729-A Passed Assembly 1987: 1729 Passed Assembly 1986: 849 Passed Assembly 1985: 849 Passed Assembly 1984: 2890-A Ways & Means 1983: 2890 Rules

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None.

EFFECTIVE DATE: Immediately, with provisions.


Text

STATE OF NEW YORK ________________________________________________________________________ 1818 2013-2014 Regular Sessions IN SENATE (PREFILED) January 9, 2013 ___________
Introduced by Sens. ESPAILLAT, HASSELL-THOMPSON, KRUEGER, MONTGOMERY, PERKINS -- read twice and ordered printed, and when printed to be committed to the Committee on Housing, Construction and Community Development AN ACT to amend the multiple dwelling law, the multiple residence law and the real property law, in relation to tenant's right to set off against rent for payments made due to landlord's failure to supply heat in certain cases THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 302-c of the multiple dwelling law, as added by chapter 85 of the laws of 1980, is amended to read as follows: S 302-c. Right of tenant to offset payments for heat failure; certain cases. 1. Any tenant acting alone or together with other tenants of a multiple dwelling employing an oil fired OR OTHER heating device for which the owner is responsible and wherein there exists a lack of heat due to the owner's failure TO REPAIR OR MAINTAIN THE HEATING DEVICE OR to have oil supplied to the premises, may contract and pay for the delivery of such oil OR SUCH MAINTENANCE OR REPAIRS, AS THE CASE MAY BE, in accordance with the provisions of this section. Any payment so made shall be deductible from rent [providing] PROVIDED the following provisions have been substantially complied with by the tenant or some- one acting on his behalf: a. Reasonable efforts were made to contact the owner or his agent to inform the owner of such failure TO REPAIR OR MAINTAIN THE HEATING DEVICE OR to supply oil. b. Reasonable efforts were made to have the normal REPAIR AND MAINTE- NANCE SERVICE AGENCY UNDERTAKE THE SAME OR TO HAVE THE NORMAL fuel supplier to the premises deliver the requested fuel, AS THE CASE MAY BE.
c. Delivery of fuel oil to the premises, IF THAT BE THE CASE, was secured from a fuel supplier regularly engaged in such business at a price within the range of prices listed by the department in the index provided for in subdivision three of this section. d. REPAIRS OR MAINTENANCE, IF THAT BE THE CASE, TO THE HEATING DEVICE WAS SECURED FROM A SERVICE AGENCY REGULARLY ENGAGED IN SUCH BUSINESS AT A PRICE SUBSTANTIALLY SIMILAR TO THE PRICES LISTED BY THE DEPARTMENT IN THE INDEX PROVIDED FOR IN SUBDIVISION FOUR OF THIS SECTION. E. The REPAIR AND MAINTENANCE SERVICE AGENCY OR fuel supplier from whom SERVICE OR oil is secured provided a written statement containing the following: (1) The name of the person or persons who requested the REPAIR OR MAINTENANCE SERVICE OR delivery; and (2) The date, time of and premises to which THE REPAIR OR MAINTENANCE SERVICE OR delivery was made; and (3) [The] IF OIL WAS DELIVERED, amount, grade and price of the oil [delivered]; and (4) [A] IF OIL WAS DELIVERED, certification that the usable fuel supply before the delivery was exhausted; and (5) IF REPAIR OR MAINTENANCE SERVICE WAS PROVIDED, THE SEPARATE CHARG- ES FOR EQUIPMENT AND PARTS USED AND LABOR EXPENDED, ITEMIZED AND SEPA- RATELY STATED; AND (6) The charge, if any, for refiring the burner; and [(6)] (7) The amounts and from whom any payments were received. [e] F. AFTER SUCH REPAIR OR MAINTENANCE WORK HAS BEEN UNDERTAKEN, IF THAT BE THE CASE, REASONABLE EFFORTS WERE MADE BY THE TENANT OR TENANTS TO NOTIFY ALL OTHER TENANTS THAT SUCH WORK HAS BEEN UNDERTAKEN, INCLUD- ING POSTING A NOTICE IN A PUBLIC AREA OF THE BUILDING WHICH LISTS THE DATE, TIME AND EXTENT OF SUCH WORK. A tenant shall not be required to comply with the provisions of paragraph a or b hereof unless the owner has continuously kept posted in a conspicuous place at the premises a notice containing his name, address and telephone number or that of his agent and the name, address and telephone number of the REPAIR AND MAIN- TENANCE SERVICE AGENCY FOR THE HEATING DEVICE OR THE fuel supplier to the premises AS THE CASE MAY BE. [f] G. For purposes of this section, a multiple dwelling shall be considered to lack heat if, during the months between October first and May thirty-first, while ITS HEATING DEVICE IS INOPERATIVE DUE TO A BREAKDOWN OR MALFUNCTION OR WHILE its usable fuel supply was exhausted, the outdoor temperature fell below fifty-five degrees Fahrenheit at any time during the hours between six o'clock in the morning and ten o'clock in the evening. 2. The deduction from rent allowed by this section shall also include a reasonable charge, if any, made by the supplier for refiring the oil burner at the premises. 3. The department charged with the enforcement of laws, ordinances and regulations in relation to multiple dwellings shall: a. Maintain and, to the extent practicable, update at least bi-weekly an index reflecting the range of prices of fuel oil according to grade and quantity paid per gallon on deliveries within the jurisdiction of the department during the last two week period for which statistics are available; and b. Maintain and keep current and available a list of suppliers which have agreed to make deliveries of fuel oil in the circumstances, and to render such assistance as [is] MAY otherwise BE required [hereby] to enable tenants to obtain the benefits[,] contemplated by this section.
4. THE DEPARTMENT CHARGED WITH THE ENFORCEMENT OF LAWS, ORDINANCES AND REGULATIONS IN RELATION TO MULTIPLE DWELLINGS SHALL: A. TO THE EXTENT PRACTICABLE MAINTAIN AND UPDATE AT LEAST MONTHLY AN INDEX REFLECTING THE RANGE OF PRICES CHARGED FOR EMERGENCY REPAIR AND MAINTENANCE OF OIL FIRED AND OTHER HEATING DEVICES INCLUDING USUAL CHARGES FOR EQUIPMENT, PARTS AND LABOR COMMONLY USED OR EXPENDED IN EFFECTING SUCH REPAIR AND MAINTENANCE; AND B. MAINTAIN AND KEEP CURRENT AND AVAILABLE A LIST OF REPAIR AND MAIN- TENANCE SERVICE AGENCIES WHICH HAVE AGREED TO PROVIDE SUCH SERVICES IN SUCH CIRCUMSTANCES AND TO RENDER SUCH ASSISTANCE AS MAY OTHERWISE BE REASONABLY REQUIRED TO ENABLE TENANTS TO OBTAIN THE BENEFITS CONTEM- PLATED BY THIS SECTION. 5. The payment FOR REPAIRS AND MAINTENANCE OR for fuel oil at a price within the range of prices permitted by paragraph c OR D of subdivision one of this section, AS THE CASE MAY BE, shall be conclusively presumed to have been a reasonable price. [5] 6. The introduction into evidence in any action or proceeding of any statement rendered in compliance with the provisions of paragraph [d] E of subdivision one of this section shall be presumptive of the facts stated therein. Sufficient foundation for the allowance into evidence of such statement shall consist of the oral testimony of any person named as a payer of all or part of the amount indicated thereon relating the facts and circumstances in which the statement was rendered. [6] 7. Any tenant who has in good faith secured and paid for REPAIRS, MAINTENANCE OR fuel oil otherwise in conformance with the provisions of this section and against whom an action or proceeding to recover possession of the premises for nonpayment of rent or any other action or proceeding attributable at least in part to the tenant seeking or taking a deduction from rent as allowed by this section shall, in addition to any other amounts, be entitled to recover reasonable costs and attor- ney's fees against an owner bringing such action or proceeding. [7] 8. No owner or agent shall be entitled to recover any amounts in damages from any REPAIR AND MAINTENANCE SERVICE AGENCY OR fuel oil supplier OR AN AGENT OR EMPLOYEE THEREOF who attempts in good faith and acts reasonably to carry out the intendment of this section except damages arising out of gross negligence. [8] 9. The remedy provided in this section shall not be exclusive and a court may provide such other relief as may be just and proper in the circumstances. Nothing in this section shall be construed to limit or deny any existing constitutional, statutory, administrative or common law right of a tenant to contract and pay for the delivery of fuel oil for the multiple dwelling in which he resides or to pay for the cost of any other goods and services for such multiple dwelling. This section shall not be construed to preclude any defense, counterclaim or cause of action asserted by a tenant that may otherwise exist with respect to an owner's failure to provide heat or any other service. [9] 10. Any agreement by a tenant of a dwelling waiving or modifying his rights as set forth in this section shall be void as contrary to public policy. [10] 11. The provisions of this section shall be liberally construed so as to give effect to the purposes set forth herein. S 2. Subdivision 11 of section 302-c of the multiple dwelling law, as added by chapter 893 of the laws of 1982, is renumbered subdivision 12. S 3. Section 305-c of the multiple residence law, as added by chapter 85 of the laws of 1980, is amended to read as follows:
S 305-c. Right of tenant to offset payments for heat failure; certain cases. 1. Any tenant acting alone or together with other tenants of a multiple dwelling employing an oil fired OR OTHER heating device for which the owner is responsible and wherein there exists a lack of heat due to the owner's failure TO REPAIR OR MAINTAIN THE HEATING DEVICE OR to have oil supplied to the premises, may contract and pay for the delivery of such oil OR SUCH MAINTENANCE OR REPAIRS, AS THE CASE MAY BE, in accordance with the provisions of this section. Any payment so made shall be deductible from rent [providing] PROVIDED the following provisions have been substantially complied with by the tenant or some- one acting on his behalf: a. Reasonable efforts were made to contact the owner or his agent to inform the owner of such failure TO REPAIR OR MAINTAIN THE HEATING DEVICE OR to supply oil. b. Reasonable efforts were made to have the normal REPAIR AND MAINTE- NANCE SERVICE AGENCY UNDERTAKE THE SAME OR TO HAVE THE NORMAL fuel supplier to the premises deliver the requested fuel, AS THE CASE MAY BE. c. Delivery of fuel oil to the premises, IF THAT BE THE CASE, was secured from a fuel supplier regularly engaged in such business at a price within the range of prices listed by the department in the index provided for in subdivision three of this section. d. REPAIRS OR MAINTENANCE, IF THAT BE THE CASE, TO THE HEATING DEVICE WAS SECURED FROM A SERVICE AGENCY REGULARLY ENGAGED IN SUCH BUSINESS AT A PRICE SUBSTANTIALLY SIMILAR TO THE PRICES LISTED BY THE DEPARTMENT IN THE INDEX PROVIDED FOR IN SUBDIVISION FOUR OF THIS SECTION. E. The REPAIR AND MAINTENANCE SERVICE AGENCY OR fuel supplier from whom SERVICE OR oil is secured provided a written statement containing the following: (1) The name of the person or persons who requested the REPAIR OR MAINTENANCE SERVICE OR delivery; and (2) The date, time of and premises to which THE REPAIR OR MAINTENANCE SERVICE OR delivery was made; and (3) [The] IF OIL WAS DELIVERED, amount, grade and price of the oil [delivered]; and (4) [A] IF OIL WAS DELIVERED, certification that the usable fuel supply before the delivery was exhausted; and (5) IF REPAIR OR MAINTENANCE SERVICE WAS PROVIDED, THE SEPARATE CHARG- ES FOR EQUIPMENT AND PARTS USED AND LABOR EXPENDED, ITEMIZED AND SEPA- RATELY STATED; AND (6) The charge, if any, for refiring the burner; and [(6)] (7) The amounts and from whom any payments were received. [e] F. AFTER SUCH REPAIR OR MAINTENANCE WORK HAS BEEN UNDERTAKEN, IF THAT BE THE CASE, REASONABLE EFFORTS WERE MADE BY THE TENANT OR TENANTS TO NOTIFY ALL OTHER TENANTS THAT SUCH WORK HAS BEEN UNDERTAKEN, INCLUD- ING POSTING A NOTICE IN A PUBLIC AREA OF THE BUILDING WHICH LISTS THE DATE, TIME AND EXTENT OF SUCH WORK. A tenant shall not be required to comply with the provisions of paragraph a or b hereof unless the owner has continuously kept posted in a conspicuous place at the premises a notice containing his name, address and telephone number or that of his agent and the name, address and telephone number of the REPAIR AND MAIN- TENANCE SERVICE AGENCY FOR THE HEATING DEVICE OR THE fuel supplier to the premises AS THE CASE MAY BE. [f] G. For purposes of this section, a multiple dwelling shall be considered to lack heat if, during the months between October first and May thirty-first, while ITS HEATING DEVICE IS INOPERATIVE DUE TO A BREAKDOWN OR MALFUNCTION OR WHILE its usable fuel supply was exhausted,
the outdoor temperature fell below fifty-five degrees Fahrenheit at any time during the hours between six o'clock in the morning and ten o'clock in the evening. 2. The deduction from rent allowed by this section shall also include a reasonable charge, if any, made by the supplier for refiring the oil burner at the premises. 3. The department charged with the enforcement of laws, ordinances and regulations in relation to multiple dwellings shall: a. Maintain and, to the extent practicable, update at least bi-weekly an index reflecting the range of prices of fuel oil according to grade and quantity paid per gallon on deliveries within the jurisdiction of the department during the last two week period for which statistics are available; and b. Maintain and keep current and available a list of suppliers which have agreed to make deliveries of fuel oil in the circumstances, and to render such assistance as [is] MAY otherwise BE required [hereby] to enable tenants to obtain the benefits[,] contemplated by this section. 4. THE DEPARTMENT CHARGED WITH THE ENFORCEMENT OF LAWS, ORDINANCES AND REGULATIONS IN RELATION TO MULTIPLE DWELLINGS SHALL: A. TO THE EXTENT PRACTICABLE MAINTAIN AND UPDATE AT LEAST MONTHLY AN INDEX REFLECTING THE RANGE OF PRICES CHARGED FOR EMERGENCY REPAIR AND MAINTENANCE OF OIL FIRED AND OTHER HEATING DEVICES INCLUDING USUAL CHARGES FOR EQUIPMENT, PARTS AND LABOR COMMONLY USED OR EXPENDED IN EFFECTING SUCH REPAIR AND MAINTENANCE; AND B. MAINTAIN AND KEEP CURRENT AND AVAILABLE A LIST OF REPAIR AND MAIN- TENANCE SERVICE AGENCIES WHICH HAVE AGREED TO PROVIDE SUCH SERVICES IN SUCH CIRCUMSTANCES AND TO RENDER SUCH ASSISTANCE AS MAY OTHERWISE BE REASONABLY REQUIRED TO ENABLE TENANTS TO OBTAIN THE BENEFITS CONTEM- PLATED BY THIS SECTION. 5. The payment FOR REPAIRS AND MAINTENANCE OR for fuel oil at a price within the range of prices permitted by paragraph c OR D of subdivision one of this section, AS THE CASE MAY BE, shall be conclusively presumed to have been a reasonable price. [5] 6. The introduction into evidence in any action or proceeding of any statement rendered in compliance with the provisions of paragraph [d] E of subdivision one of this section shall be presumptive of the facts stated therein. Sufficient foundation for the allowance into evidence of such statement shall consist [in] OF the oral testimony of any person named as a payer of all or part of the amount indicated ther- eon relating the facts and circumstances in which the statement was rendered. [6] 7. Any tenant who has in good faith secured and paid for REPAIRS, MAINTENANCE OR fuel oil otherwise in conformance with the provisions of this section and against whom an action or proceeding to recover possession of the premises for nonpayment of rent or any other action or proceeding attributable at least in part to the tenant seeking or taking a deduction from rent as allowed by this section shall, in addition to any other amounts, be entitled to recover reasonable costs and attor- ney's fees against an owner bringing such action or proceeding. [7] 8. No owner or agent shall be entitled to recover any amounts in damages from any REPAIR AND MAINTENANCE SERVICE AGENCY OR fuel oil supplier OR AN AGENT OR EMPLOYEE THEREOF who attempts in good faith and acts reasonably to carry out the intendment of this section except damages arising out of gross negligence. [8] 9. The remedy provided in this section shall not be exclusive and a court may provide such other relief as may be just and proper in the
circumstances. Nothing in this section shall be construed to limit or deny any existing constitutional, statutory, administrative or common law right of a tenant to contract and pay for the delivery of fuel oil for the multiple dwelling in which he resides or to pay for the cost of any other goods and services for such multiple dwelling. This section shall not be construed to preclude any defense, counterclaim or cause of action ASSERTED BY A TENANT that may otherwise exist with respect to an owner's failure to provide heat or any other service. [9] 10. Any agreement by a tenant of a dwelling waiving or modifying his rights as set forth in this section shall be void as contrary to public policy. [10] 11. The provisions of this section shall be liberally construed so as to give effect to the purposes set forth herein. S 4. Subdivision 11 of section 305-c of the multiple residence law, as added by chapter 893 of the laws of 1982, is renumbered subdivision 12. S 5. Section 235 of the real property law, as amended by chapter 85 of the laws of 1980, is amended to read as follows: S 235. Wilful violations. 1. Any lessor, agent, manager, superinten- dent or janitor of any building, or part thereof, the lease or rental agreement whereof by its terms, expressed or implied, requires the furnishing of hot or cold water, heat, light, power, elevator service, telephone service or any other service or facility to any occupant of said building, who wilfully or intentionally fails to furnish such water, heat, light, power, elevator service, telephone service or other service or facility at any time when the same are necessary to the prop- er or customary use of such building, or part thereof, or any lessor, agent, manager, superintendent or janitor who wilfully and intentionally interferes with the quiet enjoyment of the leased premises by such occu- pant, is guilty of a violation. 2. Any lessor, agent, manager, superintendent or janitor of any build- ing, or part thereof, who wilfully or intentionally acts to prevent or obstruct the PROVISION OF REPAIRS OR MAINTENANCE TO AN OIL FIRED OR OTHER HEATING DEVICE OR THE delivery of fuel oil ordered in compliance with either section three hundred two-c of the multiple dwelling law or section three hundred five-c of the multiple residence law or the refir- ing of an oil burner after such [a] PROVISION OF SERVICE OR delivery OF OIL shall be guilty of a violation. S 6. This act shall take effect immediately, provided that sections two and four of this act shall take effect on the same date as chapter 471 of the laws of 1978 takes effect pursuant to chapter 893 of the laws of 1982.

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