BH 410320 RO
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. BH 410320 RO
: DISTRICT RENT OFFICE
ISTA Management, DOCKET NO. 044281
TENANT: Robert and Carol
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On August 25, 1987, the above named petitioner filed a Petition
for Administrative Review against an order issued on August 14,
1987, by the Rent Administrator, 10 Columbus Circle, New York,
New York, concerning the housing accommodations known as 210
East 68th Street, New York, New York, Apartment No. 11B, wherein
the Rent Administrator had determined that the owner was
providing and must maintain three air conditioners.
On September 5, 1984, the tenants Robert and Carol Tannenhauser
commenced this proceeding by filing an objection to the Services
Registration for their apartment that had ben filed by the owner.
The objection stated that three air conditioners are provided by
the building owner and are included in the rent.
In answer to the objection, the owner stated that it does not
provide air conditioning or maintenance of air conditioner units.
The owner asserted, however, that it does provide unlimited and
unmetered electric service to the premises and is therefore
entitled under Administrative Order No. 95 to a surcharge for the
use of the air conditioners, ownership notwithstanding.
The owner submitted a copy of the tenants' initial lease for the
period April 1, 1975 through March 31, 1977, as well as a copy of
the prior tenant's lease for the period January 1, 1973 to
December 31, 1974. The complaining tenants' lease contains a
clause to the effect that the owner is not responsible for
maintenance or repairs to any air conditions in the apartment.
The prior lease for the period beginning January 1, 1973 does not
contain the same clause.
In the order issued August 14, 1987, the Administrator determined
that services provided by the owner include the three air
conditioners. The Administrator based its determination on the
premise that renewal leases must be on the same conditions as the
expiring lease and that the introduction of the air conditioner
clause in the lease effective April 1, 1975 was a change in the
BH 410320 RO
conditions contained in the expired lease and was therefore
In its petition, the owner alleges that the January 1, 1973 lease
was between the owner and the tenant prior to the complaining
tenant, that the complaining tenant's initial lease was effective
April 1, 1975 and was therefore a new lease and not a renewal.
The owner asserts that the air conditioners were left behind by
the prior tenant and that pursuant to the lease clause it is not
responsible for these units.
In response to the petition, the tenant asserts that at the time
the apartment was leased the owner's agent represented that the
rentals included electricity and it was tenant's understanding
that there would be no additional cost for using the air
conditioners, and that the owner has in fact serviced the air
conditioners on several occasions. The tenant further asserts
that he was never furnished with a copy of the leases referred to
by the owner in the petition, including the clause which
specifically refers to the air conditioners.
In reply, the owner asserts that it has never provided or
serviced the air conditioners, that it believes the tenant
purchased them from the prior tenant, that in the lease clause it
was negotiated that the air conditioners were not the property of
the owner and that the base rent for this apartment does not
include the use of air conditioning electricity. The owner added
that the leases requested by the DHCR were provided by the owner
during processing and it is owner's understanding that the DHCR
forwards copies to the tenant.
The Commissioner is of the opinion that this petition should be
granted in part.
The Administrator erred in concluding that the lease clause
concerning the air conditioners was invalid because it was not
contained in the prior lease. It is only renewal leases that
must contain the same terms and conditions as the prior lease and
the lease in question was clearly the initial vacancy lease of
the complaining tenants. If, in fact, the air conditioner units
in the subject apartment were the property of the prior tenant,
as the owner asserts, the clause regarding their maintenance
could not possibly have been in the prior lease. But if the air
conditioners were indeed abandoned by the prior tenant, they
became the property of the owner when they were not removed upon
reletting the apartment to the complainants. The lease clause
which addresses the air conditioning units merely states that the
owner has no responsibility to repair or maintain the units but
does not disclaim ownership. Accordingly, the Commissioner finds
that the owner provides three air conditioners which must be
included among the equipment and services required to be
registered. However, in accordance with the base date (the first
date air conditioners were provided to the apartment by the
owner) practice the owner is not responsible for repairing or
maintaining the units but must replace them when they are no
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
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ORDERED, that this petition be, and the same hereby is, granted
in part, and that the Administrator's order be, and the same
hereby is, modified in accordance with this order and opinion.
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner