BB 410838-RT

                                STATE OF NEW YORK
                    DIVISION OF HOUSING AND COMMUNITY RENEWAL
                          OFFICE OF RENT ADMINISTRATION
                                   GERTZ PLAZA
                             92-31 UNION HALL STREET
                             JAMAICA, NEW YORK 11433



      ------------------------------------X 
      IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
      APPEAL OF                              DOCKET NO. BB 410838 RT

                                          :  DRO DOCKET NO. 30663
           Christine Fraser,
                                                                

                               PETITIONER : 
      ------------------------------------X                             


           ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW



      On February 11, 1987, the above-named petitioner-tenant filed a Petition 
      for Administrative Review against an order issued on January 13, 1987 by 
      a Rent Administrator concerning the housing accommodations known as     
      442 West 57th Street, New York, New York, Apartment No. 7H wherein the 
      Rent Administrator determined that the owner had not overcharged the 
      tenant.

      The Administrative Appeal is being determined pursuant to the provisions 
      of Section 2526.1 of the Rent Stabilization Code.

      The issue herein is whether the Rent Administrator's order was 
      warranted.

      The Commissioner has reviewed all of the evidence in the record and has 
      carefully considered that portion of the record relevant to the issue 
      raised by the administrative appeal.  

      This proceeding was originally commenced by the filing on September 10, 
      1984 of a tenant's objection to the rent and services registration.  The 
      tenant claimed that the owner increased her rent illegally in the lease 
      commencing December 1, 1980.  The tenant also claimed that various items 
      were omitted from the list of registered services.

      The owner was served with the complaint, and submitted the rental 
      history, including leases dating from the base date of April 1, 1980.

      In Order Number 30663 dated January 13, 1987, the Rent Administrator 
      determined that the tenant had not been overcharged.  The order also 
      affirmed the tenant's claims regarding the list of services.



      In her petition, the tenant generally disputes the Administrator's 
      determination, and repeats her allegation that the increase on her 







          BB 410838-RT

      December 1, 1980 lease was illegal.  Specifically, the tenant claims 
      that the owner illegally terminated the existing lease and issued her a 
      new one on which her roommate's name had been added without the tenant's 
      permission.  This lease included an unlawful vacancy allowance.  In 
      addition, she alleges that she was twice threatened with eviction unless 
      either she or the roommate moved out.

      Finally, she claims that the $12.00 fuel surcharge dating from December 
      1, 1980 is illegal, and that she is still paying it in her rent.

      In its answer, the owner generally maintains that all rent increases 
      were within the proper limits set by the Rent Guidelines Board.  As for 
      the December 1, 1980 lease, the owner claims that it included a vacancy 
      allowance because the name of the tenant's roommate was added to the 
      lease.  The owner disputes that the roommate's name was added without 
      the tenant's permission because both of them signed the lease as well as 
      the attached rider.  With regard to the $12.00 fuel surcharge, the owner 
      maintains that it was authorized under the guidelines, and that it was 
      never included in the base rent.

      The Commissioner is of the opinion that this petition should be denied.

      The tenant in this case is claiming that the owner improperly added the 
      name of her co-tenant to her three year renewal lease, effective 
      December 1, 1980, and that the rent increase exceeded the amount 
      authorized under the guidelines.  In addition, she alleges that the 
      owner improperly broke the existing lease, which was not due to expire 
      until September, 1981.  In response, the owner contends that the 
      increase, which included a vacancy allowance, was lawful under the 
      guidelines, and that the tenant and co-tenant both voluntarily signed 
      the lease and the attached rider.

      The Commissioner herein recognizes that, under the facts of the instant 
      case, the owner is correct and there were no overcharges.  Prior to the 
      1983 change in the Real Property Law, the Conciliation and Appeals Board 
      (CAB, the predecessor agency to the DHCR) had ruled that if a person who 
      was not related to the tenant moved in, an owner could either start an 
      eviction proceeding or cancel a lease to execute a new one which both 
      occupants signed as co-tenants, and which would include a vacancy 
      allowance (Accord: ARL 11273-K).  In cases where the owner waited until 
      the end of the existing lease, however, the vacancy allowance was 
      considered waived, and could not be added to the new lease.  In the 
      instant case, the owner availed himself of this policy and interposed a 
      new lease prior to the expiration of the existing one on September 30, 
      1981.  As a result, the Administrator properly included the vacancy 
      allowance in the rent calculations.

      The record also establishes that the $12.00 fuel surcharge imposed in 
      February, 1980 was never included in the base rent.
           
      THEREFORE, in accordance with the Rent Stabilization Law and Code, it is



      ORDERED, that the tenant's petition be, and the same hereby is, denied, 
      and, that the Administrator's order be, and the same hereby is, 
      affirmed.



          BB 410838-RT


      ISSUED:
                                                                    
                                      JOSEPH A. D'AGOSTA
                                      Acting Deputy Commissioner




                 




































    

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