Tenant who permits nuisance commits nuisance

Real Estate Weekly, Dec 11, 1991 by Sherwin Belkin

Tenant who permits nuisance commits nuisance

Judge Bruce M. Kramer recently rang down the curtain on a long running soap opera entitled Banzer Associates vs. Verbsky. In a well-reasoned and passionate decision which expressed sympathies to the viewpoints of all parties, the Civil Court awarded a final judgment of possession to the landlord in, what the court described as, "the latest chapter in a long standing dispute dating back to at least 1984 when the first "nuisance holdover" proceeding was brought against the respondents by the landlord."

The tenant of record was a rent controlled tenant who had lived in the subject apartment for more than four decades. Her daughter had been the cause of the various nuisance proceedings having been commenced over the years. Each of the prior proceedings had resulted in "probationary stipulations" intended to ensure that the daughter's conduct would cease and desist. Among the allegations was:

"That the (daughter's) presence in the building is a danger to the other tenants residing therein, that she is abusive, foul-mouthed, out-of-control, threatening and harassing to other occupants and that her actions have made living in the building intolerable for her neighbors."

The court, after hearing the evidence over several days of trial, found that "these allegations are not seriously in dispute". The court noted that the daughter had a lengthy criminal record and had engaged in behavior which the court characterized as "nothing short of shameful" which had "substantially jeopardized the quiet enjoyment of peace of (the tenant's) neighbors".

The court stated that if the daughter were the tenant of record, "the issue before the court would be an easy one to decide." The court found that the daughter's conduct clearly constituted a nuisance. However, the issue did not concern a tenancy of the daughter, but that of her mother. The court described the issue before the court as to whether or not:

" ... to allow for the forfeiture of this very long standing rent controlled tenancy, the court must consider whether the (tenant) has facilitated, permitted and/or acquiesced in this intolerable situation".

The court was extraordinarily cognizant of the difficulties encountered by both parties. The landlord is desirous of putting an end to disruptive conduct which was injurious to the landlord's property and to the rights of the tenant's neighbors. The tenant, whom the court described as having a "love/hate relationship" with her daughter, was "tortured by her feelings towards her daughter and feels for her as only a mother can."

In prior stipulations, in an attempt to preserve her tenancy, the tenant had stipulated not to permit her daughter to occupy the subject apartment. However, a trial, the mother was forced to admit that she had breached the stipulations, and had permitted her daughter to come back to the building, notwithstanding the fact that this course of conduct "was fraught with danger both to herself and to her neighbors." Ultimately, the tenant testified that she had, indeed, permitted her daughter to return because her daughter "had no place else to go."

The court found that Rent and Eviction Regulation [sub-section] 2204.2(a)(2) permits an owner to recover possession of a rent controlled apartment where the tenant commits or permits a nuisance. The court found that there could be no dispute that the daughter's conduct had substantially interfered with the comfort and safety of the landlord and of the other tenants and occupants in the building. The court found that neighboring tenants had fears which were entirely appropriate and rational under the circumstances. While sensitive to the plight of the tenant and her maternal feelings towards her daughter, the Court found that the tenant's having invited her daughter to return to the building, in breach of prior probationary stipulations:

" ... can lead to no other conclusion but that the respondent participated in, acquisced in and permitted the nuisance to occur and continue in the building."

Furthermore, the court noted that although the mother's actions may have been well-intentioned regarding her daughter's well being, such actions "were ill conceived and totally irresponsible in view of the ramifications to her neighbors."

As a result, the court awarded a final judgment of possession to the landlord. The landlord was represented at this trial by Jeffrey L. Goldman, my partner in Belkin Burden Wenig & Goldman. The trial required a careful presentation of the evidence, the focus of which was, not upon proving malice or evil minded intentions by the tenant; rather, Mr. Goldman's trial presentation focused upon the applicable rent control provisions which not only require the tenant to refrain from engaging in conduct whereby the tenant commits a nuisance, but also refrains from conduct which facilitates and thereby permits a nuisance.

In the instant case, the court correctly distinguished between facilitation and motivation. Although the tenant may have been motivated by her sympathies and concerns for a troubled child, the Court was forced to balance such understandable intentions against the rights of the owner and the affected neighbors.