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Ask Sam: My landlord claims I’m not rent-stabilized because a J-51 subsidy expired before I moved in. Is this true?

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Question:

I moved into my small one-bedroom apartment in 1997 and was given a rent-stabilized lease with a rider to sign with a rent of $1,265 (the building has more than six units and was constructed before 1974). I have been given rent-stabilized rent increases every year since then, until the last renewal, in 2015. The landlord now uses a management company that told me (and other renters) I am not really rent-stabilized because of a J-51 subsidy that expired right before I moved in. Assuming that is true, do I have any rights to claim rent stabilization based on the fact that I signed a rent-stabilized lease and had been paying rent-stabilized increases for 18 years?

Answer:

The expiration of a J-51 tax abatement—which gives landlords tax incentives to make major repairs on older buildings, and requires them to provide renters with stabilized leases in return—likely does not affect your stabilization status, says Sam Himmelstein, a lawyer with the firm Himmelstein, McConnell, Gribben, Donoghue & Joseph LLP who represents residential and commercial tenants and tenant associations.

Because your building was constructed before 1974 and has six units, it should be rent-stabilized, unless your landlord substantially rehabilitated the building after 1974.

“That would then make it exempt from rent stabilization, unless the landlord took a J-51 abatement," Himmelstein says. "Then, you would be stabilized because of that, and your apartment can only be destabilized when it expires, if there was a rider in every one of your leases that explains that."

Such a rider would note that your apartment was stabilized by virtue of the J-51 tax abatement, specify the date of its expiration, and note that when it did expire, your apartment would no longer be stabilized.

Ronald Languedoc, a partner at HMGDJ Law, adds, “If there was a substantial rehabilitation of the building, the landlord could have gotten J-51 tax credits for the work, but the renovations have to be very extensive.”

He advises checking the state’s Department of Housing and Community Renewal’s fact sheet on what constitutes a substantial rehabilitation. And you can find out if your building really did have a J-51 abatement through the city’s Department of Finance.

“Also look at the DOB’s website and see whether or not in the '70s or later the building got a new certificate of occupancy,” Himmelstein says. “That might be an indication a rehabilitation was done.”

If you find that your landlord did not do a substantial rehabilitation after 1974, the fact that there was a J-51 that expired does not affect your status as a stabilized tenant.

And if you decide you want to challenge your landlord’s claim that you’re not rent stabilized, Himmelstein says you have several options: You can withhold rent and force a nonpayment case in housing court, or remain in occupancy after the current lease expires and force a holdover proceeding, but these risk landing you on the tenant blacklist. Alternatively, you could file a rent overcharge complaint with the DHCR.

Another option is to sue in state Supreme Court for a declaratory judgment.

“We usually recommend the [latter], because in Supreme Court there is virtually unlimited pretrial discovery, which allows you to obtain all relevant documents from the landlord and to take their deposition," Himmelstein says. "In housing court, discovery is optional and can only be obtained if the landlord agrees or the court orders it. And a Supreme Court case, where the tenant is the plaintiff, does not result in the tenant being blacklisted."

But first, do some research and see whether your building in fact had a J-51, and whether the landlord might have done a substantial rehabilitation. 

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Attention NYC renters: thanks to a new ruling, your apartment might be rent-stabilized after all (sponsored)

Read all the Ask a Renters' Rights Lawyer columns here.


Sam Himmelstein, Esq., represents NYC tenants and tenant associations in disputes over evictions, rent increases, rental conversions, rent stabilization law, lease buyouts, and many other issues. He is a partner at Himmelstein, McConnell, Gribben, Donoghue & Joseph in Manhattan. To submit a question for this column, click here. To ask about a legal consultation, email Sam at shimmelstein@hmgdjlaw.com or call (212) 349-3000.

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