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Ask Sam: Our landlord wants to switch our heat to a more expensive system. Can we get a rent reduction?

A reduction in services could mean you're entitled to a decrease in your monthly rent.

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Question:

I live in a rent-stabilized apartment that has been purchased by a new landlord. The landlord has proposed ripping out the gas line and providing stabilized tenants with induction stoves and baseboard heaters, which are expensive, inefficient, bad for children and pets, and take up limited floor space. Does my landlord have the right to do this? Do tenants have any recourse, like rent abatements to offset costs?

Answer:

If this change to the heat and gas in your apartment does in fact make it costlier than the system you currently have, you may be entitled to a reduction in rent, says Sam Himmelstein, a lawyer at the firm Himmelstein, McConnell, Gribben, Donoghue & Joseph LLP who represents residential and commercial tenants and tenant associations.

"If a landlord wants to switch a building from one kind of heat to another, they have to ask for permission from the state Division of Homes and Community Renewal, which will often condition the granting of permission on a rent adjustment to compensate tenants for the additional anticipated cost," Himmelstein explains.

He cites a case in which tenants in the London Terrace Gardens complex had access to an indoor swimming pool for years. After building management applied to have that service restricted to co-op owners only, renters were granted a reduction in rent of $165 per month to cover gym membership as a replacement for the loss of pool access. And if your landlord's proposed changes mean not only a greater expense, but also poorer quality services, you might be able to push back further on the matter.

"As a general rule, rent-stabilized tenants are entitled to the same services they had when they moved into their apartments," says David Hershey-Webb, partner at HMGDJ Law. "Any reduction in required services could result in the rent being rolled back and frozen until the service is restored, should you file a complaint with the DHCR."

However, not all services are considered "required" by DHCR. The agency considers heat, as well as hot and cold water, as among the essential services that must be maintained under the law. Changes to anything on this list of de minimis conditions, meanwhile, are not considered a failure to provide required services.

Your landlord's proposed change doesn't clearly fall in either category, Hershey-Webb says: "The issue is whether it could be argued that the conversion from gas stove and heat to an induction stove and baseboard heating would be considered a reduction in required services."

This ambiguity leaves you with a couple of options as to how to proceed. First, you may be able to prevent your landlord from entering your apartment and making any changes at all.

"In any case like this, we first want to look at the leases, because the obligation of tenants to give access to apartments is governed by the language of leases and the law," Himmelstein says. "The rent-stabilization code says that tenants can be evicted if they don't give the landlord access for necessary repairs and improvements required by law, but this kind of work is neither of those. It's discretionary work."

However, he adds, some leases also have language that requires tenants to give the landlord access to their apartments for any work he or she deems necessary, in which case the landlord could argue that it's a breach of the lease to deny access to your apartment. You could instead hire an attorney to help you oppose the landlord's application to DHCR, which could lead to a reduction in rent. But some landlords neglect to file their plans to modify building services in the first place. 

"In that case, if tenants let the landlord in to change the heat and gas, they'd then have to file a reduction of services complaint with the DHCR," Himmelstein says.

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Read all our 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 [email protected] or call (212) 349-3000.

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