June, 2004

BANKRUPTCY AND LANDLORD – TENANT LAW

Many tenants have sought protection from eviction by filing for bankruptcy. This has been the case for both residential and commercial tenants. It has long been the case that they could stop eviction and avoid payment of rent arrears by filing for bankruptcy.

However new legal developments have made it much more difficult for tenants to avoid eviction when they file for bankruptcy. Courts have held that the filing of the bankruptcy petition may extinguish the debt, however unless the rent is paid, the landlord will still have the legal right to proceed with the eviction and recover possession of the premises.

It is very important that tenants seek skilled counsel from an attorney who is familiar with both the landlord tenant and bankruptcy aspects of the situation, before filing for bankruptcy.

Similarly, landlords need to seek advise from an attorney who is skilled in landlord and tenant matters as well as bankruptcy when a tenant files for bankruptcy.

We of course will be happy to consult with you on these issues.

HEATING SEASON IS OCTOBER 1 THROUGH MAY 31

There is misinformation about landlords’ obligation to provide heat. It is no wonder because the rules are quite complicated.

A “simple” explanation of the rules follows: all owners of buildings with three or more residential apartments as well as owners of tenant occupied one or two family dwellings which have central heating systems are required to maintain minimum temperatures in tenants apartments between October 1 and May 31. Between the hours of 6:00 am and 10:00 pm, whenever the outside temperature falls below 55 degrees Fahrenheit, owners must maintain a temperature in the tenant’s apartment of at least 68 degrees Fahrenheit. Between 10:00 pm and 6:00 am owners must keep the apartments at a minimum of 55 degrees Fahrenheit when the outside temperature is below 40 degrees Fahrenheit.

Additionally hot water must be maintained at a minimum temperature of 120 degrees Fahrenheit 24 hours a day throughout the period. Landlords can install a variety of devices that assist in monitoring temperatures.

LEAD PAINT

The lead paint problems continue to grow. The City Council has enacted legislation that has been widely reported in the press as being disastrous to the real estate industry.

This legislation is scheduled to take effect in August 2004 and will make routine construction projects much more difficult and expensive for landlords by reason of complicated lead containment and abatement requirements.

Any parties being involved in construction projects should be aware of these new rules and should take pains to make sure they are fully informed as to the new requirements for work in buildings containing lead paint.

ELECTRONIC DATA ON YOUR COMPUTER MAY NOT BE PRIVATE

There have been recent developments with regard to the ability of parties and lawsuits to obtain access to opposing party’s computer information, including but not limited to hard drives, floppy disks, zip drives, and other electronic media.

Courts are increasingly finding that one party’s intrusions into others computer files is appropriate and lawful, and Courts will order the turning over of such material, and will occasionally even entrust the search and review of a party’s computer drive to “forensic experts”.

This is a rapidly developing area in the law, and one should not assume that documents, data, emails, that are on ones computer are private. Thus, care should be taken when creating and storing files and documents of a tentative nature on your computer. Indeed, even “instant messages” may be discoverable.

The Securities and Exchange Commission and the National Association of Securities Dealers have created rules that place the same three year retention requirements on instant messages as currently exist for email and other forms of written communication.

The electronic date revolution is continuing and amounting and those who are technologically challenged may soon suffer as businesses, institutions, courts and other entities that deal with the public are becoming more reliant on electronic data and less tolerant of those who are not sufficiently skilled with the use of same.

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