Docket No. BI 710021-RO
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
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IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. BI 710021-RO
DISTRICT RENT
ADMINISTRATOR'S DOCKET
Arthur T. Mott NO. F-B-C-7-1-0019-R
Tenant: Arthur Banks
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On September 3, 1987 the above-named owner filed a petition for
administrative review of an order issued on August 17, 1987 by a
Rent Administrator concerning the housing accommodation known as
Apartment 2-C, 40 Graffing Place, Freeport, New York.
The Commissioner has reviewed all of the evidence in the record
and has carefully considered that portion of the record relevant to
the issues raised by the administrative appeal.
This proceeding was commenced by the filing of an overcharge
complaint by the tenant, dated March 16, 1987, alleging that he was
being charged a late fee of $20.00 per month, $3.85 for a smoke
detector, and that a copy of the apartment registration was put "in
the mailbox" on March 17, 1987.
To his complaint the tenant attached, among other things, rent
bills from November 1986, February 1987 and March 1987. The
February and March rent bill both stated that the monthly rent owed
is $363.92 and that the tenant owed $23.85 from a previous balance.
The tenant also attached a copy of the 1986 apartment registration
which stated that the April 1, 1986 registered rent is $363.92.
The tenant took occupancy pursuant to a three-year lease
commencing on September 1, 1973 and expiring on August 31, 1976 at
a monthly rent of $270.00.
On April 1, 1987, the Administrator mailed to the subject owner
a copy of the tenant's complaint. The Administrator also mailed a
notice requesting that the subject owner submit an answer to the
tenant's complaint within twenty days of the above-mentioned date,
and directing the owner to submit to the rent agency a copy of the
Docket No. BI 710021-RO
present tenant's lease and a copy of the lease immediately prior to
the present lease.
The owner's answer, dated April 23, 1987, alleged that
paragraph 27 of the tenant's initial lease stated that "In the
event the rent is not received within five (5) days from the rent
due date a penalty will be charged as additional rent. Tenant was
charged a late charge of $20.00 for February, 1987 and received a
credit in March."
The tenant's response to the owner's answer asserted that he
was assessed a late charge of $20.00 for January 1, 1987, and June
1, 1987, and that the subject owner did not give him a credit for
any late charges that were paid by the tenant, but did credit the
tenant $3.85 for the smoke detector.
On July 17, 1987, the Administrator mailed a notice to the
subject owner directing him to submit to the rent agency a copy of
the tenant's initial lease, including the aforementioned paragraph
27.
On July 21, 1987, the subject landlord only submitted the last
page of the tenant's alleged initial lease. The last page
contained the aforementioned paragraph 27 which stated that:
In the event that the rent is not received within five
(5) days from the due date, a penalty of $5.00 will be
charged as additional rent.
In the order reviewed herein, the Administrator determined that
the owner did not file the 1986 apartment registration form until
March, 1987, and therefore the Administrator barred the owner from
applying for or collecting any rent in excess of the legal
regulated rent in effect on the date of the preceding registration
statement. The Administrator found that as a result of the late
filing of the 1986 registration statement, the owner collected
$266.52 in excess rent from April 1, 1986 to March 31, 1987. (The
10/1/85 monthly rent of $363.92 - 4/1/85 monthly rent of $341.71 X
12 months = $266.52.) The Administrator further determined that
the collection of $20.00 for late fees is in excess of the $5.00
that is stated on the tenant's lease, and therefore the
Administrator directed the owner to refund $30.00 to the tenant,
for excess late fees that were collected by him in January and June
of 1987. The total amount the owner was directed to refund to the
tenant was $296.52 ($266.52 + $30.00).
In his petition the owner asserts that the Administrator's
order directing a refund to the tenant should be revoked as the
tenant's complaint "specifically addressed late charges," and that
the Administrator "had no authority to include issues extraneous to
the complaint without providing an opportunity for the owner to
rebut." The owner further asserts that it was improper for the
Docket No. BI 710021-RO
Administrator to have rolled back the rent to the September 30,
1985 level; that the 1986 registration forms were to be filed by
October 15, 1986; that the owner was granted an extension to file
the 1986 registration form by the rent agency through March 26,
1987; that if "excess rent were collected" it should have been
computed from November 1, 1986 through March 31, 1987; that the
late penalty of $5.00 per month contained in the 1976-1977 lease
"should receive guideline increments so that an equity balance
between rent payments and late penalties be maintained"; that the
subject tenant did not substantiate late payments of $30.00, and
that the owner had asserted in the proceeding before the
Administrator that the tenant was reimbursed for late payment fees.
To his petition the subject owner attaches a form from the rent
agency which states "you are hereby granted a period of twenty (20)
days from the date above within which to submit completed 1986
Registration Forms...." The form does not state the owner's name
or address, nor does it state the address of the subject premises.
Furthermore, the form is not dated, and is not signed.
Superimposed on the lower left-hand portion of the form is an
alleged receipt by the rent agency of a "Maintenance and Operations
Cost Survey Schedule" for a building that is separate and unrelated
to this proceeding.
The tenant's answer to the petition asserts that he never
received a copy of the owner's petition, and that the owner
credited the subject tenant $266.52 toward his rent.
On August 17, 1992, the rent agency mailed to the subject
tenant a copy of the owner's petition, and a notice informing the
tenant that he has twenty days from the above-mentioned date to
submit a response to the owner's petition.
The tenant did not submit a response.
After careful consideration, the Commissioner is of the opinion
that the owner's petition should be denied.
The Commissioner notes that the instructions promulgated by the
rent agency pertaining to the filing of the annual apartment
registration for 1986 provides that the aforementioned registration
must be filed with the rent agency no later than October 15, 1986.
The Commissioner further notes that the rent agency's record
reflects that the subject apartment's 1986 registration statement
was filed with the rent agency on June 2, 1987, and that the
subject tenant's complaint asserted that the 1986 registration
statement was put in the mailbox by the owner on March 17, 1987.
The rent agency's record further reflects that the initial
registered rent for the subject apartment was $341.71 per month,
and that the subject owner did not file a 1985 apartment
Docket No. BI 710021-RO
registration for the subject apartment.
Section 2509.3 of the State Tenant Protection Regulations
(STPR) state that:
The failure to file a proper and timely initial or annual rent
registration statement as required by this part shall, until such
time as such registration statement is filed bar an owner from
applying for or collecting any rent in excess of the legal
regulated rent in effect on the date of the last preceding
registration statement or, if no such statements have been filed,
the legal regulated rent in effect on the date that the housing
accommodation became subject to the registration requirements of
the part. The filing of a late registration shall result in the
prospective elimination of such sanctions.
The Commissioner finds that the subject owner did not timely
file the subject apartment's 1986 apartment registration.
Accordingly, the Commissioner finds that the Adminstrator's
order which established the legal regulated rent from April 1, 1986
through March 31, 1987 at the rent in effect on the date that
housing accommodation became subject to the registration
requirements of the STPR, which was $341.71 per month, should not
be disturbed.
The Commissioner finds that the owner had notice of the issue
of the late filing of the registration statement as the tenant's
complaint pointed out that the registration statement was put in
the mailbox on March 17, 1987.
Even if the subject owner did not have notice of the issue of
the late filing of the apartment registration, the Commissioner
notes that the Administrator's finding of on overcharge would still
have been warranted, as the owner is barred from collecting rent in
excess of the legal regulated rent in effect on the date of the
last preceding registration statement for not timely filing the
1986 apartment registration statement, pursuant to Section 2509.3
of the STPR.
The Commissioner finds that the exhibit that the owner attaches
to his petition has no probative value, as it is not dated, is not
signed by anyone from the rent agency, does not state the address
of the subject premises, does not state the owner's name and
address, and has a receipt issued by the rent agency pertaining to
a building not related to this proceeding superimposed on the lower
left-hand portion of the owner's exhibit. The Commissioner is of
the opinion that the above-mentioned superimposed receipt obscured
part of the owner's exhibit; that it served no purpose but to
confuse the issues in this proceeding, and that by doing so the
owner diminished his credibility in this proceeding.
Docket No. BI 710021-RO
As to the owner's assertion that the $5.00 per month late
penalty which is "contained" in the tenant's base lease "should
receive guideline increments, the Commissioner finds that this
would violate Section 2502.5 (c) (7) of the STPR. The above-
mentioned section states that:
The lease provided to the tenant by the landlord...
shall be on the same terms and conditions as the last
lease prior to the local effective date except where a
change is required or authorized by a law applicable to
the building or to leases for housing accommodations
subject to the Act....
The Commissioner finds that there is no provision in the STPR
or the Emergency Tenant Protection Act of 1974 which would permit
an increase in late fees from the amount set-forth in the
apartment's base date lease.
As paragraph 27 of the tenant's 1976-1977 lease states that the
tenant will be charged a $5.00 late fee for rent payments not
received within "five days from the due date," the Commissioner
finds that the subject owner may not charge the subject tenant in
excess of $5.00 for late fees.
The Commissioner notes that the owner does not deny charging
the subject tenant $30.00 in excess late fees, but merely states
that the tenant does not substantiate his allegation of being
charged excess late fees.
As the owner in the proceeding before the Administrator did not
deny the tenant's allegation of being charged $20.00 in late fees
for June 1987; that the tenant in his answer to the owner's
petition asserts that the owner is still charging a late fee of
$20.00, and that the tenant attached to his complaint the February
1, 1987, and March 1, 1987 rent bills which both show a previous
balance of $23.85 ($20.00 late charge + 3.85 for the smoke
detector), the Commissioner finds that based on the preponderance
of the evidence in this proceeding the owner charged the tenant
$30.00 in excess late fees.
The Commissioner further finds that if the subject owner did
refund the excess late fees to the tenant, this fact would not
warrant the revocation or modification of the Administrator's
order.
Accordingly, the Commissioner finds that the owner's petition
should be denied.
THEREFORE, in accordance with the Emergency Tenant Protection
Act of 1974, and the State Tenant Protection Regulations, it is
ORDERED, that this petition be, and the same hereby is, denied,
Docket No. BI 710021-RO
and that the Rent Administrator's order be, and the same hereby is
affirmed; and it is
FURTHER ORDERED, that the owner may not collect late fees from
the tenant in excess of $5.00 per month; and it is
FURTHER ORDERED, that the owner, Arthur T. Mott, shall
immediately refund to the tenant all amounts not yet refunded
representing overcharges; and it is
FURTHER ORDERED, that if the owner, Arthur T. Mott, has not
refunded the stated amounts as of the expiration of the time for
commencing a proceeding under Article 78 of the Civil Practice Law
and Rules for judicial review of this order, the tenant may recover
such amounts by deducting them from the rent due to the owner at a
rate not in excess of twenty percent of the amount to be refunded
for any one month's rent. If, after such period, the owner has
refunded no such amounts and the tenant has not made any such
deductions from his rent as an offset, then the tenant may file and
enforce a certified copy of this order as a judgment for the amount
of $296.52 against Arthur T. Mott.
ISSUED:
Joseph A. D'Agosta
Acting Deputy Commissioner
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