Know Your Rights
Applying for Emergency Rental Assistance
UTA provides emergency rental assistance to households in need in Albany County.
Eligible criteria for rental assistance includes: Facing eviction, “doubling-up” or couchsurfing, building or unit has been deemed uninhabitable, building is in foreclosure, National Grid has sent a shut off notice or the power has been shut off, homelessness, living in a hotel (not paid for by the Department of Social Services), being discharged from an institution of care, having moved two or more times in the past sixty days for economic reasons, received a notice that your right to occupancy will be terminated within 21 days, living in severely overcrowded housing (1.5 people per room), and others.
Unless your gross income is 125% the Federal Poverty Limit or above, all tenants must apply to the Department of Social Services for emergency rental assistance. If your income is above 125% FPL, you can request a “DSS Waiver”. If DSS is able to assist you but the assistance does not cover the full balance, UTA can work with DSS to ensure your arrears are brought to $0 and all eviction proceedings are stopped. If you are seeking relocation assistance, apply to DSS for security deposit assistance, and UTA may be able to help with first month’s rent. If DSS denies you, UTA may still be able to help.
To be eligible for rental assistance, you must be a resident of Albany County, have a rent-to-income ratio of less than 80%, your income must be less than 80% of the Area Median Income, and your rent must be at or below the Fair Market Rent. If any of these conditions cannot be met, UTA is unable to open a case. If you do not have an income, UTA cannot provide rental assistance, because payments must be sustainable and secure long-term housing. If you do not have an income, but are starting a job soon that will be able to maintain your rent moving forward, UTA can use the job letter as evidence of sufficient income.
UTA can provide emergency rental assistance once per fiscal year (July 1 – June 30).
To get a case opened with UTA, you must provide us with: Two forms of ID (one with a picture) for every adult with an income in the household, a DSS acceptance/denial letter for emergency rental assistance (unless your income is 125% the FPL, in which case UTA can provide a waiver), proof of income for the last thirty days for every adult in the household, proof of the cost of rent, proof of emergency, proof of the rent owed, and a copy of the lease.
Generally, UTA’s maximum payment is $2,100. This is subject to change, and may be lower as all rental assistance is reliant on grants with different restrictions.
Landlord and Tenant Responsibilities:
All landlords are expected to provide sanitary dwelling spaces in the building, both common areas and individual apartments. Landlords must respect public shared areas in apartments with 2+ units. Heat must be provided between October 1 and May 31. Landlords have a duty of repair (general and utilities). Services to the unit must be connected. Tenants have a right to privacy which landlords must respect (including providing tenants with 24 hours notice before entering units unless in the case of emergencies). Landlords must offer security (doors that lock, property lighting, and more). Landlords must allow for apartment sharing for a reasonable amount of time. Landlords must make reasonable accommodations for tenants with disabilities, unless the accommodation is unduly expensive. Landlords may not discriminate against tenants.
Any lockout or eviction requires a court order and judgment. In the case of eviction, landlords must keep tenant properties dry and secure for a reasonable amount of time (generally recognized to be 30 days). If a tenant vacates on their own volition before the lease expires, the landlord must make good-faith attempts to re-rent the property and provide receipts before attempting to hold the tenant responsible for any expenses incurred. If the building is sold, the landlord must notify tenants of the name and address of the new owner. The landlord is also responsible to transfer the security deposit and any rent paid early to the new owner.
Tenants must maintain a clean and sanctuary living space. Tenants must make the landlord aware of any needed repairs and damages beyond wear-and-tear. Rent must be paid within the first five days of the month. Tenants shall grant the landlord access to their unit when 24-hour notice is given unless in the instance an emergency repair is needed. Tenants should not ‘overcrowd’ their apartment (1.5 people per room or more). Tenants must abide by the lease (unless state law supersedes lease provisions). Tenants may need to pay the landlord for expenses to accommodate their disability. Smoke detectors must be checked frequently. If locks are changed, tenants should provide the landlord with a new set of keys. Tenants may need to pay pet deposits.
Residential Occupancy Permits (city of Albany specific)
*Applicable to the City of Albany only*
Residential Occupancy Permits (ROPs) are meant to ensure dwellings are safe, and ensure the city has the best contact information for owners in the case of an emergency
Seven things a Code Enforcement Office seeks to confirm during an ROP inspection:
- Smoke and Carbon Monoxide Detectors:
A smoke detector must be in each sleeping room, outside a bathroom, near cooking appliances. One smoke dictator on each floor. A carbon monoxide detector must be in every sleeping room, in the corridor outside sleeping rooms and on the floor of all potential sources of carbon monoxide (fuel burners, etc)
- Open Means of Egress:
At least two ways out of a unit (must be lit, clear of debris and not blocked)
- General Cleanliness:
The unit is free of rubbish, garbage, hazardous materials; there must be a disposal receptacle and free of animal infestations.
Doors to unit must be lockable and operational
- Building Structure:
Building is in good and safe condition
The unit’s electrical system is operable and safe; outlets are properly covered, wires are not exposed and extension cords are not serving as permanent electrical hookups.
- Running, Clean Water
If no ROP is present, a landlord should not be able to evict a tenant for failure to pay. However, the landlord may obtain a civil judgment for sums due for the fair use and occupancy of the residential premises for periods where there was no valid ROP. This means the tenant cannot be evicted, but they will still owe the landlord money for ‘fair use and occupancy’, not rent.
Expectations of Habitability (Emergency):
The city of Albany will deem a unit Unsafe-Unfit or uninhabitable if the unit does not have heat from September 15 – May 31; does not have electricity; does not have fire suppression or detection devices; if there is extraordinary amounts of garbage or rubbish threatening the health of safety of occupants; if there are noticeable structural instabilities in the building or unit; if there are severe pest infestations; if there are compromised electrical systems that present a risk to tenants; if there are blocked, removed, or non-existent means of egress in a building containing a public space, 4 or more residential units or floors; and if the building has a proximity to unsafe structures.
When a building is deemed Unsafe-Unfit, the inspector will announce to the tenants the order. The officer will not forcibly remove the occupants, but if the building is posing such a risk that it is considered necessary to do so, the officer will likely involve someone who has the authority to remove occupants (i.e. the police).
Resolving Non-Emergency Habitability Concerns
- Tenant must notify landlord of a non-repair issue ASAP:
Tenants should make the landlord aware of the issue in writing. This can be done through text, but if there is no response, the tenant should send the letter through certified mail. It is important that you keep a copy of the letter and give the landlord a reasonable amount of time to take action.
- If no action is taken, Tenant should next call Code Enforcement:
Tenants should arrange to be present at the time the inspection is scheduled so that they can meet with the inspector and point out all unaddressed issues. Tenants should obtain the complaint report from Code Enforcement. Alternatively, in the city of Albany, tenants may find their report on the Citizen Self Service Portal. If violations are cited by Code Enforcement, they will give the landlord a deadline to resolve the issue.
- Code Enforcement conducts re-inspection:
If the issue is fixed by the landlord, the case is cleared. If no actions have been taken, or the action taken is not satisfactory to Code Enforcement, the case will be sent to prosecution, meaning the City sues the landlord for failing to comply with the City’s Codes.
If a case is brought to prosecution, the landlord will be petitioned by the city of Albany, in which case they will need to be present in court, where the judge will either settle the case or set a trial date.
- Tenants may elect to withhold rent, in which case the landlord retains the right to pursue a non-payment eviction. If a tenant is able to pay the amount of rent the judge determines is owed by the tenant, an eviction cannot go through.
Infestations and Health Hazards
Unless it can be demonstrated that the tenant is the cause of an infestation, it is the landlords’ responsibility to remedy infestations. If the tenant is the cause of the infestation, they may be responsible to remediate. Tenants are expected to comply with reasonable instructions from the landlord or pest control operator. If infestation goes unaddressed they shall call codes. An extreme infestation can result in a Unsafe-Unfit designation.
Landlords are expected to incur costs of a bed bug infestation in a timely manner. The cost of the bedbug disinfestation can only be passed onto the tenant in the instance the landlord can prove it was the tenant who caused the issue. NYS laws state the landlord has the responsibility to keep the dwelling free of insects and vermin. The tenant must comply with Codes and bed bug exterminators during this period.
Code Enforcement rarely cites mold as an issue. More often, they will cite the source of mold (such as a leak, lack of ventilation, or broken window). If a tenant is concerned, they may want to contact a third-party to inspect for mold, such as Alpine Environmental Services or Enviro Test Inc. Tenants may also wish to see a doctor or specialist to cite the habitability issue of mold if they are experiencing respiratory or other negative health impacts.
If there is a suspicion of lead in an apartment, the tenant should contact the Albany County Health Department’s Environmental Unit, which distributes free tests to homeless with a child of age 6 or younger, or a person who is pregnant in the home. If lead is found, the landlord has 14 days to come up with an action plan. Internal lead detections usually reserve the landlord six weeks to remedy fully. Outdoor lead detection similarly reserves the landlord six weeks, unless winter, in which case time permits. Lead is especially dangerous to children in their formative years, but adults can also suffer from lead poisoning.
Note: If there is no lease notice regarding lead being present, the tenant may be entitled to sue the landlord for damages.
Types of Eviction
- Nonpayment of Rent
Notices are sent if the tenant fails to pay rent in the 5-day grace period. The landlord must provide a written rent demand -served through mail- granting the tenant a 14-day notice to pay or vacate. Rent due can only be the agreed upon cost of a unit. Tenants cannot be evicted for not paying late fees. (IMPORTANT: Late fees can only be 5% of the monthly rent or $50, whichever is lower). If a lease includes an ‘added rent clause’ it is void.
- Holdover for Remaining past the date of Termination
There must be either a fixed term lease for this kind of proceeding, or have had proper notice served if the tenant is on a month-to-month lease (see section titled: Month to Month Lease). Proper notice of lease termination must be in writing, but does not need to be notarized or overly formal. At this time, the landlord is not required to provide reasoning for this type of action. A lease termination does not absolve the tenant of the obligation to pay rent until the last day of the tenancy.
Once proper notice has been served of a termination of tenancy, the landlord may bring a holdover eviction if the tenant remains in the property. If the tenant pays rent after the tenancy has ended and the landlord accepts the rent, that action invalidates the notice and the landlord must reissue the proper notice of lease termination.
- Holdover for Breach of Lease
If the landlord asserts a material noncompliance with a lease provision, the landlord should provide a notice to correct the violation (typically 3, 5, or 10 days notice) and be in accordance with the lease language. If the tenant corrects the violation, the issue is resolved. If the case goes to court and is found to have violated the lease, the court shall give the tenant 30 days to correct the violation. Failure of the tenant to cure the breach will likely result in eviction.
- Holdover for Squatters
A property owner may bring a squatters petition if there is no landlord-tenant relationship between the owner of the apartment and the occupant. This may be because the owner bought the property in a foreclosure sale, because the occupant has moved in as guest of a tenant, or because the occupant moved in as a “squatter” and is living in the apartment without anyone’s permission. The property owner must serve a Notice to Quit that tells the occupant they have 10 days to move or will be brought to court.
The Court Process
Once the landlord has served a predicate notice (such as a rent demand, 30/60/90 day notice, notice to cure, etc.) and that notice (or the lease) has expired, the landlord is within their rights to file for eviction in the court where the unit it’s located.
If successful in the case, the landlord will usually be entitled to recoup the approximate $45 filing fee. Both parties can negotiate that fee and reduce or waive the cost as leverage in the settlement. Usually the judge won’t tie the fee to an eviction, but it depends on the court.
Service of Court Papers
Service of court papers should be completed between 10-17 days prior to the court date that was given to the landlord at the time filed. If received before or after, the defendant may be entitled to having their case dismissed.
A disinterested third party -on behalf of the landlord- must serve the court papers upon the tenants in one of three ways if the landlord is seeking both a money judgment and a warrant of eviction, in the form of certified mail, regular mail, or personal service. Service should not be completed on a Sunday, papers must be served to a person of suitable age (generally age 14 and above), and papers cannot be served where the tenant works. An affidavit of service must be filed by the landlord illustrating that service was completed properly. If a landlord fails to do so, their case may be dismissed.
Court Process, General
After the papers are served, the tenant should prepare for their first court appearance. Failure to appear results in a “default judgment”, meaning the landlord is given a warrant of eviction that is effective immediately, and a judgment for unpaid rent that was sought so long as personal service of court paper was attempted. So be sure to show up!
Landlord still needs to execute the warrant by bringing it to a sheriff for the 14-day notice to be served, even if the tenant defaults. For a non-payment of rent eviction where the tenant comes up with the full amount prior to the court date, payment in full should cure the nonpayment issue. This should also be the case before an eviction is executed. If your landlord refuses the rent and continues to execute the warrant, the tenant may wish to file an Order to Show Cause with the court. Similarly, if the tenant fails to appear for a good reason, the tenant should file an Order to Show Cause.
If a Settlement is reached:
Parties are often given an opportunity to settle a case outside of the courtroom. This is where parties can stipulate an agreement that becomes a court order.
- ”Stayed Pending Payments”, the tenant makes a certain number of payments towards arrears along with the current rent to keep their housing. In this case, there is still a warrant of eviction issued, meaning if the tenant misses a payment (“by a dollar or a day”) the landlord is within their rights to execute the warrant without filing for court again. If the tenant does miss a payment, they can stop eviction with FULL PAYMENT).
- ”Warrant with Stay” (or vacating on consent) is when a tenant with leverage might negotiate an extra month in the apartment and forfeit their deposit for unpaid rent. For example: A warrant of eviction might be issued but stayed until the agreed upon date. If the tenant fails to vacate by the agreed upon date, the landlord is within rights to execute the warrant of eviction without filing again.
- “Lockout Warrant” (vacating on consent) means that the lockout can be as early as the stipulated date. There would be no 14-day notice timeframe if the tenant remains past the date of the lockout warrant.
- Tenant has a legal defense:
- A tenant can request 14-day adjournment at their first appearance to seek counsel or advocacy.
- A case can be set for trial if there is a dispute of facts like how much rent is owed, the code violations in the apartment, or how the tenant was served the court paperwork
(usually a separate date well into the future)
- Tenant has NO legal defense
- Judge will usually issue an order of eviction and money judgment for unpaid rent, but with some discretion because the tenant appeared. Tenants should ask the judge for more time to move out, but there is no guarantee this will be granted.
Parties are given a full hour to make a resolution before the judge where they can bring forth evidence to support their claim and then the judge makes their decision. If an agreement cannot be reached, the court will hear the case. Both parties will be expected to present evidence to support their arguments. For tenants this might include receipts to show rent was paid, pictures of code violations, evidence that the tenant has notified the landlord of an issue. All documents and pictures should be printed out ahead of time to be given to the court.
Order to Show Cause
An Order to Show Cause is a tool to help tenants navigate the ‘justice’ system and enter their case for review. There is no cost to file an order to show cause in City and Town courts.
In eviction cases:
If a tenant misses a court date they may file an OTSC to explain why they missed the court date (reason out of their control) and their need for a second opportunity to defend themselves. Example: The tenant received a 14-day notice without being properly served and therefore had no knowledge of the court date.
If a tenant attends their court date, an OTSC can be used when the tenant abided by the court ordered stipulation but still received a 14-day notice (if they believe in error); or the tenant entered into court ordered stipulation including a landlord obligation, for which the landlord did not fulfill.
In Small Claims Court
An order to show cause is usually used to vacate a default judgment in a small claim. When a tenant realizes a judgment has been issued against them for unpaid money, the tenant should call the local court to ask if a case was filed:
- If a case was filed and default issued, an OTSC is the best route
- If no case was filed and a judgment was obtained without a claims process, the tenant should get legal advice.
This may happen if a tenant breaks a lease or moves out of an apartment and the landlord knowingly sues them at the address where they no longer reside. In this instance, the landlord wins a default judgment because the tenant was not properly notified. Because of this, the tenant can issue an OTSC and have the case reopened.
Main Parts of an OTSC Application:
The tenant should indicate the lawful reason they did not attend court, such as the failure by the landlord to serve the paperwork, or that the tenant did appear in court but has received a 14-day notice they believe in error.
Here, the tenant must make a proper defense of their actions and need for their OTSC. It should be noted even if the tenant had a legal reason to be absent from court, if they have no case the judge may not grant them an OTSC.
If the judge signs the order, the tenant will usually need to serve the sheriff and have someone disinterested serve the landlord, and file an affidavit back with the court; in which case, the 14-day notice will stop and the landlord will get a notice to reappear. Both parties will need to reappear to ‘show cause’ to the court, and the court case will go through the general course explained above.
14 Day Notices and Lockouts
A 14-day notice is served by a sheriff, marshall or constable. It is the first of the final steps toward eviction. The delivery must be triggered with a signed warrant of eviction from a judge. An eviction can take place without a court process, though tenants have a right to defend themselves.
If a tenant was not petitioned to go to court, they should seek an OTSC. If the tenant has fully complied with the 14-day notice, they should go to court immediately to file an OTSC. If the judgment for eviction is entered into court it may be tied to a specific day if an agreement was reached or if the judge gave discretion, meaning that if the tenant continues to occupy the residence a day later than the warrant is stayed, the landlord can move forward with eviction. If the tenant signs into a payment stipulation and fails to pay the exact rent, the landlord can move forward with the eviction process:
- The landlord may apply for an amended warrant at the court if there was a court stipulation, but they will not have to petition the tenant back to court.
- The landlord may have a live warrant that does not need to be amended.
- Upon receiving a ‘live warrant’, the landlord can execute the warrant of eviction at any time. This is done by the landlord bringing the warrant to the sheriff and the sheriff serving the 14-day notice to the tenant. This can be done by mail, postal notice or personal delivery. Once this occurs, the 14-day timeframe begins. The warrant can be executed on a business day between sunrise/sunshine. Weekends and holidays are counted in the 14 days but the lockout cannot occur on those days.
If the tenant receives a 14-day notice, they should pack all valuable and essential belongings and begin planning for relocation as soon as possible. After the notice expires, the landlord and sheriff will come to change the locks, at which point, the rental is no longer in the tenants possession.
In a nonpayment of rent eviction, the tenant will have the right to pay the full rent due at any time prior to its actual execution. The tenant should bring the full amount due to court and owed to the court.
Once the tenant is locked out legally, they should be informed that NYS is “A RIGHT TO SHELTER STATE”, meaning after an eviction occurs they have a right to emergency shelter. Before 4:30 on weekdays, the tenant should go to Albany County Department of Social Services at 162 Washington Ave to access emergency shelter. After 4:30 on weekdays or anytime on holidays, the tenant should contact Homeless And Travelers Aid Society at 138 Central Ave, which provides ‘after hours’ homeless shelter access in Albany. HATAS can be reached anytime at 518-463-2124.
After the lockout:
The owner of the property where the eviction took place has ‘fiduciary responsibility’, or obligation, to keep the tenants’ belongings safe and dry for a reasonable amount of time. This does not have to be in the unit. A reasonable amount of time is usually considered 14-30 days. It is illegal for landlords to hold tenant’s belongings for ransom. However, they can charge the tenant for the store unit’s cost if that is where the belongings are to be located.
If a lockout occurs without a tenant having received a petition to court or a 14-day notice, it may be an illegal lockout.
- First, the tenant should call their local court to see if a case has been filed against them and if a default was entered. If there was and the caller was not made aware of the process they should file an OTSC or get legal assistance immediately.
- If no case was filed against the tenant, they should contact the non-emergency police in the area and request assistance with getting back into the home. It is a Misdemeanor A for a landlord to illegally evict a tenant. A tenant can also sue for damages, separately.
Illegal Lockouts are classified as a Class A Misdemeanor
- If illegally locked out, the tenant may break in and recover possession of the apartment with the assistance of a police officer. The officer will complete an Significant Incident Report (SIR) detailing the facts/circumstances. If the officer is reluctant to complete an SiR, the tenant should persist as much as possible.
The tenant should also get the badge number and name of the officer.
Possessory Judgment – Judgment (rent) is tied to the tenants right of stay. The debt is tied to a warrant of eviction. A tenants inability to pay a possessory judgment debt results in eviction. Sometimes the judgment is a single lump sum payment, sometimes it is a series of payments.
Non-Possessory Judgment – Debt for the unpaid rent is granted to the landlord but payment of the rent is not tied to the tenants right to stay in that apartment. The judgment does not need to correspond with a warrant of eviction.
Consequences of a Money Judgment:
- Low credit and difficulty building it back.
- Income extensions on bank accounts can freeze an account.
- Garnished wages, often approx. 10% of gross income.
- Sheriff or Marshall fees added to the collection amount.
- Difficulty accessing future rental housing due to a judgment or poor credit, which may cause drawn-out stays in shelters or other homeless situations.
- Landlord refusal to renew the lease due to unpaid judgment (resulting in holdover).
- Landlord termination of month-to-month tenancy due to unpaid judgment (holdover).
- Tenants with debt experience cyclic evictions and are forced into substandard and unsafe housing.
- Tenants have significantly less capacity to purchase homes, frequently for the rest of their lives
- Money judgments exacerbate generational poverty, disproportionately amongst POC.
- Money judgments accrue interest at 9% and are valid for 20 years.
- Money judgments are treated as ‘less serious’ or ‘non emergency’ by Social Services agencies and less likely to be covered by a grant.
No landlord shall legally serve a notice to quit in retaliation for:
- a good faith complaint alleging a violation of the duty of repair, warranty of habitability, or any other law/regulation regarding a dwelling;
- a good faith legal action by filing a claim against a landlord; or
- an attempt at establishing a tenants association or union
The landlord’s attempt at retaliatory eviction is prohibited. There is also a “rebuttable presumption”, which means if a landlord attempts to remove a tenant within a year of the landlord’s taking action in retaliation, unless the landlord can prove otherwise, it is presumed that they are responding to one of the three retaliatory eviction prohibitions. The landlord is also prohibited from making substantial alterations to the terms of the tenancy as revenge for any action taken by the tenant, including: refusal to renew lease or tenancy, or to not offer a new lease. Note: If the tenant owes money, it will usually disprove a retaliation case.
Withholding Rent & Abatement Hearings
Tenants who choose to withhold rent due to non-repairs would do so under RPL 235-b, based on a breach of warranty and habitability. The landlord retains the right to sue the tenant for nonpayment, in which case the tenant will answer that they are legally withholding.
If the landlord sues, the tenant should appear and inform the court of the habitability issue and can request the following, depending on relief sought:
- “A stay of proceedings or action for rent upon failure to make repair”, RE: RPAPL 755
- “An abatement of rent for violations of the warranty of habitability”, RE: RPL 253-b
- “A request that the court require repairs to the premises where a landlord seeks the court terminate a tenancy”, RE: UCCA 203
(if the tenant chose to deduct the cost of repairs from the rent this would also fall under RPL 253-b)
These are the three general types of relief UTA has seen granted by the city of Albany civil court. The burden of proof is on the tenant to illustrate the conditional issues in the home and the landlord’s failure to provide habitable housing. Tenants should bring documentation from Code Enforcement indicating the breaches of warranty/habitability, as well as print outs of any photos.
It is important that tenants withholding put the rental funds in an escrow account. It is also important to notify the landlord that rent is being withheld until noted code violations are resolved. Otherwise, the tenant can expect to find themselves in court for non-payment. If the tenant does not have the necessary funds to stop a non-payment eviction, they may be evicted.
Note: The court will often direct the tenant to deposit or tender payment of some or all of the rent before granting the relief. If the tenant only withholds a portion of rent, the payment required upfront may be less.
Abatement hearings usually result in amounts that are no more than 25% the cost for common code issues. If the violation is severe the tenant must demonstrate this. Once abatement is issued, the tenant usually has a week to pay the monies determined to be owed by the court. FAILURE TO PAY IN FULL tends to result in eviction. Payment in full should result in continued tenancy.
Small Claims Court Process
Small Claims can only relate to ‘Out of Pocket’ costs only (such as lost items, the value of security deposit, etc). No punitive damages (being pain/suffering) will be considered by the court.
If the tenant wins their case, they can recoup the filing fee. Court dates are usually 30 days out from the day filed. To file a small claim against a landlord, the tenant must sue the owner of the property where the owner lives or works at a physical address. The tenant cannot sue a PO box or an agent of the owner.
If a tenant does not know the landlord’s address, they can:
- Look up the address on Albanylandlord.com. The address will be displayed under the landlord’s name.
- The tenant can call their local tax assessor and ask about ownership information at the address they reside. They would then sue the entity that the tax assessor has on file.
- If the tax assessor does not have an address on file, the tenant can call their local code enforcement department and ask if they have a physical address on file.
The form to file is simple and costs $15-20. Tenants can file for up to $5,000 per case.
Once in court, the judge gives parties the opportunity to settle in the hallway. If no agreement is reachable, the court will settle the trial usually on a separate date. Both sides give testimony, and then the judge decides the verdict.
Note: For any small claims case, tenants will want to appear for their case prepared with: three reasonable estimates for each item being claimed (may not be necessary to present but best to be prepared), any Code reports and photos, text messages, etc.
The most that can be requested as a security deposit is one month’s rent. If the landlord sells the property, the security deposit is supposed to go to the new owner. The landlord can retain all or some of the security deposit for: unpaid rent or utility bills, damage beyond normal wear and tear, moving and storage of tenants belongings; lost income due to a tenant breaking the lease and not finding a subleaser.
If the landlord does not return the Security Deposit:
For tenancies entered into prior to July 14, 2019, there is no real penalty that landlords face if they fail to return a security deposit for an illegitimate reason or no reason at all.
For Tenancy Expiration Predating 7/14/2019, returned deposit shall take place by a ‘reasonable time’ following the move out. Usually defined as 30 days. If an emergency results in the tenant needing to move out for their safety due to an Unsafe-Unfit designation, the landlord should return the deposit immediately. When vacating a unit, apartments should be left ‘broom clean’ by the tenant, and they should take photos of everything upon vacating.
For Tenancy Expiration After 7/14/2019, the landlord must offer the tenant the opportunity to inspect the apartment prior to move-in and execute a written agreement on the conditions of the property. Within 14 days of the tenant moving out the landlord shall provide the tenant with an itemized statement indicating the basis for deductions from the security deposit.
**If a landlord does not do this they have forfeited their right to retain any portion of the deposit. This means if the tenant sues the landlord for the deposit, the landlord must return it in full**
Any landlord who fails to complete these provisions will be subject to punitive damages of 2x the deposit. If the landlord sells the home it is their responsibility to transfer over the security deposits to the new owner within 5 days of the sale, or give the security deposits to the tenants to give to the new landlord.
When Disputes Arise
Legal action should be the last resort. It is best to solve disputes outside of a court. When this is not possible, security deposit disputes usually take place in Small Claims court. The tenant must sue the owner at the address where the owner lives or works. (See “Small Claims Court Process for information on receiving owner’s information). Some courts will only hear the beginning of the case if it is not resolved in the hall, and complete the case on a future date. Photographs of the apartment, videos of the space, written requests for repairs, witnesses, move-in/move-out checklists all help prove a tenant’s case. This must be printed out, as judges will not use cell phone photos or videos as evidence. If the landlord is claiming damages they should provide evidence too (usually pictures).
The burden is on the tenant to refute the landlord’s claims. It is up to the judge to decide whose case has the most merit and who is ordered to pay/return what.
Note: document, document, document, from the start to avoid such disputes from arising.
Protected characteristics for buyers of homes and renters:
- Federal: Race, Color, Religion, Sex, Disability, Family Status and National Origin;
- State: Sex, Age, Marital Status, Military Status, Disability, Family Status, National Origin, Sexual Orientation, Gender Identity, Source of Income.
Prohibited Actions Include:
- Refusal to sell/rent because of one of the above characteristics
- Discrimination based on protected characteristics in terms of sale, conditions of sale or rental
- Advertising the sale of a unit indicating a preference, limitation or discrimination
- Coercing, threatening, or interfering with a person’s enjoyment or exercise of housing rights
- Retaliation against a person or organization that encourages the excise of Fair Housing
Protected Sources of Income:
- Child support
- Alimony or spousal maintenance
- Foster care subsidies
- Social security benefits
- Federal, state or local public assistance
- Federal, state or local housing assistance (including Section 8 or other voucher forms of assistance)
- Any other form of lawful income
Who cannot Discriminate?:
- Owners and Landlords
- Managing Agents or Companies
- Co-op Boards and Condominium Associations
- Tenants seeking to Sublet
- Real Estate Brokers and Salespersons
- Any Employee or Agent of the above
- Federal: File a complaint through the Office of Fair Housing and Equal Opportunity, and HUD’s Office of General Counsel
- State: Albany Regional Office of NYS Division of Human Rights at 518-474-2705
For “reasonable accommodations”, tenants must meet the statutory definition of having a disability. Tenants should request an accommodation in writing from the landlord. Requests should state the tenant has a disability and explain how the accommodation will help enhance the tenants ability to enjoy their home and lessen the effects of their disability. Requests should include a note from a service provider, doctor or therapist verifying the need for accommodation. There is no need for disclosing details of disability or medical history.
If the accommodation is ‘unreasonable’, the landlord can offer a substitute accommodation with an explanation of why the primary request is not being met. In private housing, the landlord can require the tenant to pay for the cost of the modification. The landlord can under certain circumstances request the tenant create an account with deposits equal to the amount necessary to restore the unit to its original conditions if the adaptation made may interfere with the use and enjoyment of the unit by the next tenant.
Emotional Support Animals:
Even if a landlord explicitly prohibits pets, a tenant with disabilities can keep their emotional support animal. Usually a letter from a therapist or physician will suffice.
A lease is a contract. Even though some landlords will explain that parts of the lease can be ignored, it is important to make sure all changes are written and signed so that breaking the clause cannot be a circumstance for problems in the future. Some lease clauses are illegal in New York State and therefore void, even if you’ve signed off on them.
When a Lease Ends
If the lease is not immediately renewed and the tenant remains in the unit the landlord can file for eviction (“holdover”). If the landlord does not file in court and accepts next month’s rent, the tenant is considered to be on a ‘month to month’ basis with the same provisions of the former lease.
Breaking a lease
Three legal reasons for tenants in NYS to break a lease:
- Domestic Violence (final order of protection brought against abuser and still in the same apartment, the victim can request from family court an order allowing the tenant to break the lease without penalty)
- Military Service (due to active duty)
- Senior Citizen (when certified by physician as no longer able to live independently, tenant must be above age of 62)
If a tenant breaks a lease for any other reason they should be prepared for:
- Being sued for remaining rent
- Judgment for unpaid rent until unit is re-rented
- Judgment may result in garnishment of wages and/or damage to tenant’s credit
If the unit is uninhabitable due to fire or other damages outside the tenant’s control, the tenant should be able to vacate without any lease issues. Notaly, a landlord is expected to attempt to recoup rental availability in the instance a tenant breaks a lease. If the landlord sits idly hoping to recover losses, the court may dismay a certain amount of months. However, if the landlord makes an effort to re-rent the unit and can demonstrate that good faith attempt, the landlord can sue the tenant for the months that rent was not received as well as the security deposit.
Month to Month tenancy is the default for tenants without leases. Similarly, some landlords offer month to month leases. If there was a fixed-term lease that expired, but the landlord continued to collect rent, the tenant is held to the standards of the previous lease.
If a landlord intends to terminate a month to month tenants residency, there are difference timelines of eviction notices necessary:
- Occupancy for less than a year requires a 30 day notice
- More than a year but less than 2, 60 day notice
- More than two years, 90 day notice
Recurring leases are legal, but the landlord must notify the tenant 60 days prior to the automatic renewal.
Public Housing Tenants
In the city of Albany, publicly owned housing is controlled by the Albany Housing Authority.
Upon signing a lease, Public Housing tenants are subject to lengthy terms of agreement. Often:
- Rent is 30% of household income;
- Occupiers of the rental can only be those listed on the lease;
- Any desired occupant must be added to the lease agreement before entering the household, and that individual would need to disclose their income to the PHA as well;
- Having additional tenants in the unit can result in termination of tenancy;
- Every time a tenant’s income changes they must notify the Public Housing Authority;
- Failure to recertify at the onset of an income change can result in termination of tenancy or retroactive rent being charged;
- Tenants are responsible to recertify income at the notice date of income, not necessarily at receipt of income;
- Tenants who lose their income should notify the PHA immediately to have eligibility assessed for a ‘hardship rent’ ($50-0, circumstantial);
- Among other expectations.
Tenants looking to request a transfer in the Public Housing Authority should request in writing to their building manager and update their familial status if there have been any changes. If there is a safety issue the tenant should submit supporting documents if available and request the emergency transfer. Emergency transfers are granted only where there is a threat to life, health or safety that cannot be abated within 24 hours. Otherwise requests for transfers are dealt with on a needs basis.
If accused of violating the lease, the process typically goes as follows:
- Initial notice indicating the violation;
- Follow up notice from the Public Housing Authority indicating that the violation has not ceased;
- Opportunity to request an informal hearing;
- (Sometimes the household will need to request a hearing in writing and will not be sent a notice detailing their right to do so);
- If the tenant does not agree with the informal meeting’s finding they can request a formal meeting, in writing.
Annual Rectification is mandatory with Public Housing households. Usually four reminders are sent indicating the household’s need to recertify, but do not rely on this many notices. If no recertification is completed by the household they will either have their rent increased to the Fair Market Rent or be petitioned to court.
Albany Housing Authority Specifics
Rent is due by the 5th of the month, if paid past the 10th they will be subject to a $25 fine.
Tenant delinquent of $150 or more will be petitioned to court for nonpayment
- Court for AHA households takes place the same day each month (for nonpayment)
- Tenants who appear and pay the current month’s rent will usually be eligible for a payment stipulation (otherwise known as a “repayment agreement”) spanning 6-12 months (this timeline has extended with the onset of the pandemic)
- Tenants who appear but are unable to pay that month’s rent or are unlikely to secure income in the near future are given until roughly until the end of the same month to pay the arrears (usually at least 2 weeks)
- Tenants may sign a ‘Confession of Judgment’ prior to entering into either above mentioned stipulation (payment agreement or two week stay)
- It is difficult to dispute a judgment after a ‘Confession of Judgment’ is signed, but the tenant can request a file review with the Housing Authority to make sure arrears are calculated correct
- If the tenant enters into payment stipulation in court and defaults, the entire balance becomes due and the warrant of eviction becomes live without the Housing Authority needing to petition the household back to court.
Maintenance fees usually are listed in the contract signed by the Housing Authority tenant. Fees are usually assessed for every repair (i.e. changing a lightbulb, $5). Questions about maintenance fees should be first directed to the tenant’s site manager. Then the tenant can escalate the grievance process by requesting in writing an informal hearing about the charge. Charges agreed upon by a signed lease have generally been held up as enforceable.
Section 8 Tenants
Section 8 is a federal voucher program where the voucher subsidizes rent in a private market overseen by the Public Housing Authority. The subsidy moves with the household and the household is assigned a Section 8 worker.
To Apply Your Voucher:
The unit must pass ‘rent reasonableness’ test and a Section 8 inspection. The landlord can charge a rent up to the amount that is ‘reasonable’ for that zipcode per a Section 8 formula. Sometimes this allows a landlord to charge a higher rent because the Section 8 formula may be more than the average family could afford without a subsidy. Households pay up to 30% of their income toward the rent and voucher covers the rest via a payment directly to the landlord.
Only household members documented by the PHA can live in the unit (any changes in household size must be noted within 10 days of the change). Everytime income changes they must notify their Section 8 worker (within 10 days). Section 8 worker and tenant meet annually to recertify. Tenants who fail to report income changes may be subject to a retroactive rent charge or be deemed a ‘fraud account’, resulting in termination.
Tenants dealing with non repair issues or issues of habitability in their private rental should go through a the following process to assert their rights:
- Request inspection with Section 8 department first;
- Request inspection also with codes for additional documentation;
- Allow Section 8 to go through their process;
- Section 8 may elect to withhold their rent portion;
- This means that the apartment goes into abatement with Section 8;
- If abatement lasts 30-60 days it will result in a voucher being issued to the tenant to move;
- The tenant can then search for a new apartment to which the voucher can be applied, even in the first year of tenancy, if landlord is noncompliant with Section 8 inspection remedies;
- It is important that the tenant utilizes the time allocated for their moving voucher properly. If a tenant is unable to secure new housing and they expend all of their voucher extensions, they may lose their voucher.
Tenants on Section 8 will have move-in, annual and (sometimes) random quality control inspections at their unit. If the tenant damages the apartment, the landlord may be able to bill them for the damage, but it is still the landlord’s responsibility to fix the issue.
Tenants who fail to pay their portion of the rent, even if withholding rent for documented violations of warranty, put their voucher at risk. Failure to pay tenant portion can result in loss of voucher).
Landlord-Tenant Relationship on Section 8:
Landlord must give the tenant a 1-year fixed lease at the outset of tenancy. After one year, parties may agree to go to month to month tenancy.
If seeking eviction, the landlord must serve both the tenant and Section 8 department court papers, failure to do so may result in dismissal of the case. Landlords cannot charge the tenant rent above Section 8 contract rent and Housing Assistance Program contract terms. Added rent clauses are sometimes not enforceable with Section 8 terms, but vary. Tenants can be evicted for nonpayment of rent that is in abatement (meaning Section 8 is not paying) for the first 6 months. Tenants can also be evicted for nonpayment of their own portion of rent, in which case, they will lose their voucher.
After six months of abatement, if the tenant fails to find a new apartment, the tenant can be held responsible for ALL OF THE RENT OWED. The tenant can also be terminated from the program for failure to find a new, habitable unit to apply the voucher to.
Tenants in Foreclosure
Tenants in foreclosure can remain in their units for the remainder of their lease despite the building’s foreclosure unless the new buyer at the foreclosure sale intends to occupy the unit as a primary residence. All tenants including those without a lease have a right to 90 days’ notice before eviction.
Typical pathway of as mortgage foreclosure:
- The Borrower (landlord) is delinquent and receives a 90-day pre-foreclosure notice from the lender (often a bank);
- The foreclosure initiates;
- A summons and Complaint is served on Borrower by the Lender (the lender is obligated to send this notice to tenant, as well);
- The Borrower answers, ignores or requests settlement conference;
- The borrower may go through the process of fighting the foreclosure or settling the case by refinancing, or they may ignore the notice and not attempt to prevent the foreclosure from taking place (this is common for absentee landlords);
- As the foreclosure continues, the lender will file for a judgment of foreclosure and sale;
- Eventually there is an auction, where the lender or third party takes the property title. Any new owner must exhibit the deed to tenants explaining the change in ownership.
Common defenses for tenants in foreclosed properties facing eviction:
- Lender served defective notice to quit
- Lender failed to exhibit referee’s deed
- Lender failed to comply with 90-day notice period for tenants in foreclosure
- Lender filed proceeding prematurely before the notice expired
(Altogether, the process usually takes a year. COVID-19 has extended this timeline)
Tenants can Ask for “Cash for Keys”
A common agreement in mortgage foreclosures where the foreclosing party may have an interested buyer for the building who does not wish to purchase it if occupied is to offer ‘Cash for Keys’.
- $5,000 for two month move out
- $2,500 for a 30 day move out
- $1,500 for a 15 day move out
If accepting this, the tenant would sign an agreement with the lender and obtain’ cash for keys’ in the amount depending on the timeframe agreed upon. If the tenant is unable to meet the terms, they still have 90-days to remain in the apartment, they just won’t be paid upon move out.
If a tenant intends to stay longer than 90-days (to finish the lease) they should contact the new owner and provide a copy of their lease.
Tenants are not automatically afforded 90 days or the duration of the lease upon a completed tax foreclosure. Tenants are also not entitled to a court eviction process.
Typical pathway for tax foreclosures:
- The landlord is delinquent with taxes,
- The municipality mails the petition and notice of foreclosure
- The landlord has approximately 3 months to pay in full or file an answer
- When the landlord fails to pay, the municipality is usually not entitled to take title for approximately 6 months after the mailing was sent
- When the municipality takes title, the tenant receives a 72 hour notice from sheriff
ALBANY COUNTY tax foreclosures give notices to tenants to assist them with relocation months before taking title. Albany County does not evict during “code blue” months . Albany County avoids forcing tenants into shelter because the County incurs the cost. Sometimes, the County will even offer the tenants the property if they have the financial ability.
A utility supplier cannot take any action until the payment is 20 days past due. The utility supplier must then issue a final notice of termination at least 15 days prior to shut off. This means the EARLIEST a termination can occur is 35 days after the payment due date.
- Termination can only occur between M-Th 8AM-4PM.
- Termination cannot occur on Friday, a public Holiday; a day the utility supplier’s main office is closed or during the two-week period of Christmas and New Years Day.
If a shutoff is conducted illegally, tenants should contact the Public Service Commission.
Deferred Payment Agreements (DPAs):
A DPA is an agreement between the tenant and utility supplier to pay arrears over a set amount of time. DPAs should fit the customers financial circumstances, can be as low as $0 down $10/mo, and must be signed by the tenant and utility supplier. The Public Service Commission helps resolve DPA disagreements.
If a tenant falls behind on their DPA, they should call the utility supplier to renegotiate the DPA. Likely, tenants will have to be able to prove a change in financial standing and resolve the issue.
A utility may be shared by tenants in separate dwellings. “The Shared Meter Law” requires the owner to have the utilities in their name, or the shared meter separated.
UTA’s Court Advocacy Services
UTA provides court advocacy only for eviction defense. To access this service, tenants should call the emergency housing hotline and request court advocacy. UTA only provides court advocacy to Albany civil court. Tenants should bring all related material to court with them. UTA cannot attend trials because advocates are not permitted to speak in trial settings. Instead, the advocate is permitted to:
- Educate tenants and articulate potential defenses
- Assist tenants in reaching resolutions and crafting agreements
- Help negotiate payment arrangements
- Explain court process
- Provide emotional support to the tenant
- De-escalate and mediate between the tenant and landlord
- Advocate for the tenant to help them reach their housing goals
Building a Tenant Association
There are various ways a Tenant Association can be composed, whether apartment building or complex, landlord, street, neighborhood, or city based. Tenant Associations are composed of tenants that are organized, like a labor union. They can work to communicate collectively with a landlord for repairs, rent abatement, security measures, and other community development activities. UTA works to facilitate and support tenant associations as they develop and meet, to ensure their collective demands are met.
The first step in building a tenant association is talking with your neighbors, and establishing a small group that then begins to communicate with other neighbors, documenting their needs and collecting their contact information, and then establishing a time and place where tenants are comfortable getting together and developing strategies to get their needs taken care of.
You cannot be evicted for tenant organizing. If your landlord attempts to bring you to court for eviction, you can raise your organizing activities as a defense and charge retaliation. If successful, this protects you from any eviction proceedings for the next year (see section titled Retaliatory Eviction).
If you’re interested in learning more, call Marco Flagg, UTA’s Tenant Organizing Coordinator at (518) 407-3404
All requests for assistance are handled through the Housing Hotline. Tenants seeking assistance can reach our Housing Hotline at (518) 436-8997 extension 3. A housing counselor will return calls in the order they are received. We appreciate your patience while we respond to high call volumes. Requests and questions can also be sent to email@example.com.
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