(c)
(1) In the event notice of any inspection is
given by the division in a proceeding commenced pursuant to this section, the
inspection shall be conducted on notice to both the owner and tenant.
(2) Upon receipt of a copy of the tenant's
complaint from the division, an owner shall have 20 days in which to respond if
the tenant provided the division with the proof of the written notice to the
owner. If the tenant did not provide proof of written notice to the owner, an
owner shall have 60 days in which to respond. If the tenant's complaint
indicates that the tenant has been forced to vacate the premises, the owner
shall have five days to respond. If the complaint pertains to heat and hot
water or to a condition which in the division's opinion may require emergency
repairs, the owner shall have 20 days to respond. Nothing herein shall preclude
the division from granting an owner's request for a reasonable extension of
time to respond in order to establish that service problems have been repaired.
If during this period of time, an owner has attempted, but been unable to
obtain access to the subject housing accommodation to correct the service or
equipment deficiency, the owner should set forth such facts in the response.
Upon receipt thereof, in order to facilitate the resolution of the complaint,
the division may direct an inspector to accompany the owner or the owner's
agent to the housing accommodation to determine whether such access is being
provided. In order for the division to coordinate the inspection, the owner
should indicate that access has been denied in the response submitted to the
division and should include copies of two letters to the tenant attempting to
arrange for access. Each of the letters must have been mailed at least eight
days prior to the date proposed for access, and must have been mailed by
certified mail, return receipt requested. Exceptions to such requirements for
inspection may be permitted under emergency conditions, where special
circumstances exist, or pursuant to court order. The service complaint, or
objection to a rent restoration application, by a tenant who fails to provide
access at the time arranged by the division for the inspection will be
denied.
(d) Certain
conditions complained of as constituting a decrease in an essential service may
be de minimis in nature, and therefore do not rise to the level of a failure to
maintain an essential service for the purposes of this section. Such conditions
are those that have only a minimal impact on tenants, do not affect the use and
enjoyment of the premises, and may exist despite regular maintenance of
services. The following schedule sets forth conditions that will generally not
constitute a failure to maintain an essential service. However, this schedule
is not intended to be exclusive, and is not determinative in all cases and
under all circumstances. Therefore, it does not include all conditions that may
be considered de minimus, and there may be circumstances where a condition,
although included on the schedule, will nevertheless be found to constitute a
decrease in an essential service.
SCHEDULE OF DE MINIMIS CONDITIONS
BUILDING-WIDE CONDITIONS
1. AIR CONDITIONING:
Failure to provide in lobby, hallways, stairwells, and
other nonenclosed public areas.
2. BUILDING ENTRANCE DOOR:
Removal of canopy over unlocked door leading to
vestibule; changes in door-locking devices, where security or access is not
otherwise compromised.
3.
CARPETING:
Change in color or quality under certain circumstances;
isolated stains on otherwise clean carpets; frayed areas which do not create a
tripping hazard.
4.
CLOTHESLINES:
Removal of, whether or not dryers are provided.
5. CRACKS:
Sidewalk cracks which do not create a tripping hazard;
hairline cracks in walls and ceilings.
6. DECORATIVE AMENITIES:
Modification (e.g., fountain replaced with rock garden);
removal of some or all for aesthetic reasons.
7. ELEVATOR:
Failure to post elevator inspection certificates; failure
to provide or maintain amenities (e.g., ashtray, fan, recorded music).
8. FLOORS:
Failure to wax floors; discrete areas in need of cleaning
or dusting, where there is evidence that janitorial services are being
regularly provided and most areas are clean (see JANITORIAL SERVICES, item
12).
9. GARAGE:
Any condition that does not interfere with the use of the
garage or an assigned parking space (e.g., peeling paint where there is no
water leak).
10. GRAFFITI:
Minor graffiti inside the building; any graffiti outside
the building where the owner submits an "affidavit of on-going maintenance"
indicating a reasonable time period when the specific condition will be next
addressed.
11. LANDSCAPING:
Modification; failure to maintain a particular aspect of
landscaping where the grounds are generally maintained.
12. JANITORIAL SERVICES:
Failure to clean or dust discrete areas, where there is
evidence that janitorial services are being regularly provided because most
areas are, in fact, clean.
13. LIGHTING IN PUBLIC AREAS:
Missing light bulbs where the lighting is otherwise
adequate.
14. LOBBY OR
HALLWAYS:
Discontinuance of fresh cut flowers; removal of fireplace
or fireplace andirons; modification of furniture; removal of some furnishings
(determined on a case-by-case basis); removal of decorative mirrors; reduction
in lobby space where reasonable access to tenant areas are maintained;
elimination of public area door mat; failure to maintain a lobby directory that
is not associated with a building intercom; removal or replacement of window
coverings (see DECORATIVE AMENITIES, item 6).
15. MAIL DISTRIBUTION:
Elimination of door-to-door or other methods of mail
distribution where mailboxes are installed in a manner approved by the U.S.
Postal Service.
16.
MASONRY:
Minor deterioration; failure to point exterior bricks
where there is no interior leak damage.
17. PAINTING: Change in color in public areas
under certain circumstances; replacement of wallpaper or stenciling with paint
in the public areas; isolated or minor areas where paint or plaster is peeling,
or other similarly minor areas requiring repainting, provided there are no
active water leaks; any painting condition in basement or cellar areas not
usually meant for or used by tenants; any painting condition that is limited to
the top-floor bulkhead area provided there is no active water leak in such
area.
18. RECREATIONAL FACILITIES:
Modifications, such as reasonable substitution of
equipment, combination of areas, or reduction in the number of items of certain
equipment where overall facilities are maintained (see ROOF, item 19).
19. ROOF:
Discontinuance of recreational use (e.g., sunbathing)
unless a lease clause provides for such service, or formal facilities (e.g.,
solarium) are provided by the owner; lack of repairs where water does not leak
into the building or the condition is not dangerous.
20. SINKS:
Failure to provide or maintain in compactor rooms or
laundry rooms.
21. STORAGE
SPACE:
Removal or reduction of, unless storage space service is
provided for in a specific rider to the lease (not a general clause in a
standard form residential lease), or unless the owner has provided formal
storage boxes or bins to tenants within four years of the filing of a tenant's
complaint alleging an elimination or a reduction in storage space
service.
22.
SUPERINTENDENT/MAINTENANCE STAFF/MANAGEMENT:
Decrease in the number of staff, other than security,
provided there is no decrease in janitorial services; elimination of on-site
management office; failure to provide an on-site superintendent, provided there
is no decrease in janitorial services.
23. TELEVISION:
Replacement of individual antennas with master antenna;
visible cable; television wires; or other technologies.
24. TOILET IN PUBLIC AREAS:
Removal of (except in buildings containing class B
units).
25. WINDOWS:
Sealed, vented, basement or crawl space windows, other
than in areas used by tenants (e.g., laundry rooms); cracked fire-rated
windows; peeling paint or other nonhazardous condition of exterior window
frames.
INDIVIDUAL APARTMENT CONDITIONS
1. APPLIANCES AND FIXTURES:
Chips on appliance, countertop, fixtures or tile
surfaces; color-matching of appliances, fixtures or tiles.
2. CRACKS:
Hairline cracks; minor wall cracks, provided there is no
missing plaster, or no active water leak.
3. DOORS:
Lack of alignment, provided condition does not prevent
proper locking of entrance door or closing of interior door.
4. FLOOR:
Failure to provide refinishing or shellacking.
5. NOISE:
Caused by another tenant.
6. WINDOW FURNISHINGS:
Failure to re-tape or re-cord venetian blinds.
(e) In determining
whether a condition is de minimis, the division may consider the passage of
time during which a disputed service was not provided and during which no
complaint was filed by any tenant alleging failure to maintain such disputed
service, as evidencing that such service condition is de minimis, and therefore
does not constitute a failure to maintain an essential service, provided that:
(1) for purposes of this subdivision, the
passage of four years or more shall be considered presumptive evidence that the
condition is de minimis, with such four-year period to be measured without
reference to any changes in building ownership or the tenancy of the subject
housing accommodation; and
(2)
services required to be provided by laws or regulations other than the act or
this Subchapter shall not be subject to this subdivision.
(f)
(1)
Except as to complaints of inadequate heat and/or hot water, or applications
relating to the restoration of rents based upon the restoration of such
services, whenever a complaint of building-wide reduction in services, or an
owner's application relating to the restoration of rents based upon the
restoration of such services is filed, the tenants or owner may submit with the
complaint, answer or application, the contemporaneous affidavit of an
independent licensed architect or engineer, substantiating the allegations of
the complaint, answer, or application. The affidavit shall state that the
conditions that are the subject of the complaint, answer or application were
investigated by the person signing the affidavit and that the conditions exist
or do not exist. The affidavit shall specify what conditions were investigated
and what the findings were with respect to each condition. The affidavit shall
state when the investigation was conducted, must be submitted within a
reasonable time after the completion of the investigation, and when served by
the division on the opposing party, will raise a rebuttable presumption that
the conditions that are the subject of the complaint, answer or application
exist, or do not exist.
(2) The
presumption raised by the affidavit may be rebutted only on the basis of
persuasive evidence, including a counter affidavit by an independent licensed
architect or engineer, or a report of a subsequent inspection conducted, or a
subsequent violation imposed by a governmental agency, or an affirmation signed
by 51 percent of the complaining tenants. Except for good cause shown, failure
to rebut the presumption within 30 days will result in the issuance of an order
without any further physical inspection of the premises by the
division.
(3) There must be no
common ownership, or other financial interest, between such architect or
engineer and the owner or tenants, and the affidavit shall state that there is
no such relationship or other financial interest. The affidavit must also
contain a statement that the architect or engineer did not engage in the
performance of any work, other than the investigation, relating to the
conditions that are the subject of the affidavit, and must contain the original
signature and professional stamp of the architect or engineer, not a copy. The
division may conduct follow-up inspections randomly to ensure that the
affidavits accurately indicate the conditions of the premises. Any person or
party who submits a false statement will be subject to all penalties provided
by law.
