Docket No. BI710024RO
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. BI710024RO
Arthur T. Mott, DISTRICT RENT
ADMINISTRATOR'S DOCKET
NO. FBD710012R
Tenant: Nelson Perez
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On September 9, 1987, the above-named owner filed a petition
for administrative review of an order issued on August 10, 1987 by
the Rent Administrator, concerning housing accommodations known as
Apartment 3-H, 30 North Long Beach Avenue, 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 petition for review.
This proceeding was commenced by the filing of a rent
overcharge complaint by the tenant, dated April 13, 1987. The
tenant's complaint also asserted that the owner collected $50.00
for a new door lock the tenant allegedly never received.
To his complaint the tenant attached a copy of the subject
apartment's 1986 registration which lists the subject apartment's
April 1, 1986 rent as $633.74 per month.
On April 24, 1987, the Administrator mailed to the subject
landlord a copy of the tenant's complaint, and a notice requesting
that the landlord submit his answer to the tenant's complaint
within twenty days of the above-mentioned date. The notice also
directed the owner to submit to the rent agency a copy of the
subject tenant's lease and a copy of the lease effective
immediately prior to the subject tenant's initial lease.
On May 1, 1987 the subject landlord filed his answer which
asserted that the subject tenant's initial rent was computed by
adding to the prior tenant's monthly rent of $633.74, a vacancy
factor of $52.81 (1/12 of $633.74), and adding $80.00 per month for
Docket No. BI710024RO
the use of a indoor garage. The owner further asserted that the
above-mentioned amounts equal to $766.55, and that the tenant's
initial rent was only $750.00 per month.
Furthermore, the owner alleged that providing garage space was
a new service created during a vacancy in the subject apartment,
and as such, the owner asserted that he was entitled to add $80.00
per month to the tenant's rent, without requiring prior approval of
the rent agency or obtaining the written consent of the tenant.
The owner also asserted that renting the garage was a requisite
for renting the subject apartment.
To his answer the owner attached, among other things, a copy of
the subject tenant's lease which commenced on December 1, 1986 and
expired on November 30, 1987, which listed the monthly rent at
$750.00, and a copy of the aforementioned 1986 registration.
On June 30, 1987 the subject tenant filed a response to the
owner's answer which alleged, among other things, that the prior
tenant's rent was $633.74 per month including the garage, and that
the tenant's lease does not include any mention of the garage
space, but only lists the monthly rent as $750.00.
On July 2, 1987 the Administrator mailed to the owner a notice
requesting copies of the subject apartment's 1984 and 1985
registration within twenty days of the above-mentioned date.
Also on July 2, 1987 the Administrator sent a notice to the
Rent Registration Unit of the Division of Housing and Community
Renewal (DHCR) to request whether the subject apartment's 1984
registration lists garage space as a required service.
On July 31, 1987 the owner submitted an alleged copy of the
apartment's 1984 registration which lists the April 1, 1984 rent as
$565.00 per month, and lists a stove and refrigerator as services
that are included in the rent. The owner also submitted an alleged
copy of the apartment's 1985 registration which lists the April 1,
1985 rent as $588.54 per month.
The Rent Registration Unit of DHCR provided the Administrator
with a computer printout of the apartment's required services that
are listed in the 1984 registration, which includes a stove, a
refrigerator and one garage space.
In the order under review herein, the Administrator determined
that garage service is a required service and is included in the
tenant's rent, and that the owner's assertion that the garage space
was added as a service while the apartment was vacant is without
merit. The Administrator also determined that the tenant's legal
regulated rent for the lease period commencing on December 1, 1986
and expiring on November 30, 1987 is $711.80 per month, and was
computed by the Administrator by adding the following:
Docket No. BI710024RO
a) $633.74-September 30, 1986 rent including garage space;
b) $25.35-4% guideline increase for a one-year lease, and
c) $52.81-Vacancy factor
Furthermore, the Administrator found that there was a rent
overcharge of $1,031.40, including treble damages, and that the
owner collected $50.00 from the tenant for installing a door lock
which was never received by the tenant. The Administrator directed
the owner to refund $1,081.40 to the tenant.
In this petition the owner asserts that the subject owner was
not the registered owner of the subject building in 1984; that the
subject owner did not prepare the 1984 registration; that the
subject owner did not purchase the subject building until June 3,
1986; that the 1984 and 1985 registrations submitted by the owner
to DHCR made no reference to garage space as a required service;
that the DHCR's computer printout does not constitute sufficient
evidence of the subject owner collecting rent in excess of the
legal regulated rent; that the owner alleges that, as the
petitioner relied on information contained in apartment
registrations filed by a prior owner the collection of excess rent
by the subject owner could not have been willful, and therefore
imposing treble damages was not proper; that the owner denies ever
receiving $50.00 for the door lock from the tenant; that the tenant
has not proved that he has paid the aforementioned $50.00, and that
the Administrator's determination that the owner collected $50.00
from the tenant was improper.
On December 9, 1987 the tenant filed a response to the owner's
petition which asserts, among other things, that the garage space
is included in the rent; that he is entitled to treble damages, and
that he is submitting proof about paying $50.00 for the door lock.
To the response the tenant attaches a copy of a check for
$1,550.00, which is dated December 2, 1986. On the lower left-hand
corner of the check the words, "Payments of Security, Rent, Keys,"
are written.
After careful consideration, the Commissioner is of the opinion
that the owner's petition should be denied.
The Commissioner notes that the subject apartment's 1984
registration that was filed with the rent agency by the building's
prior owner noted that garage space is included in the building's
rent. The Commissioner further notes that the subject owner's copy
of the subject apartment's 1984 registration, which was submitted
to DHCR in the proceeding before the Administrator, did not list
garage space as being included in the apartment's rent.
Docket No. BI710024RO
Accordingly, the Commissioner is of the opinion that the above-
mentioned subject owner's copy of the subject apartment's 1984
registration is not a true and accurate copy of the subject
apartment's 1984 registration. The Commissioner is also of the
opinion that the subject owner's copy of the apartment's 1984
registration has no probative value in this proceeding.
As the rent agency's records show that garage space is a
required service to be included in the subject apartment's rent,
the Commissioner finds that the Administrator properly calculated
the tenant's legal regulated rent based on the applicable rent
guidelines, and that the Administrator's finding of a rent
overcharge should not be disturbed.
Even if the owner had in good faith believed that garage
service were not a required service, the Commissioner is of the
opinion that the Administrator's imposing treble damages would
still have been proper. The Commissioner notes that, by the
owner's admission, the acceptance of garage service was a requisite
to renting the subject apartment.
The Commissioner is of the opinion that when a service is not
contained within the individual housing accommodation, e.g., garage
space, and is not a required service, the owner may not require the
acceptance of these types of services as a condition precedent to
renting an apartment.
Assuming arguendo that the subject owner in this proceeding did
not known that garage service were a required service, the
Commissioner is of the opinion that the subject owner requiring the
acceptance of garage service as a condition precedent to renting
the subject apartment, and that the tenant's rent was in fact
increased by the tenant's use of the garage space, was an attempt
by the owner to contravene the provisions of the applicable rent
regulations which prohibit the charging of rent in excess of the
legal regulated rent.
Accordingly, the Commissioner finds that the Administrator
imposing treble damages in this proceeding should not be disturbed.
The Commissioner further finds that the owner's assertion that
he did not purchase the building until June 3, 1986, and that he
did not file the 1984 registration, is irrelevant to this
proceeding as the Administrator's finding of a overcharge started
with the lease period commencing on December 1, 1986.
As to the owner's assertion that he did not receive the $50.00
for the door lock, the Commissioner finds that the owner raises
this issue for the first time upon administrative review. As the
owner has not established that this issue which is raised for the
first time upon administrative review could not reasonably have
been raised in the proceeding before the Administrator, it is
Docket No. BI710024RO
outside the scope of the Commissioner's review in this proceeding.
Even if the owner did raise the aforementioned issue in the
proceeding before the Administrator, the Commissioner is of the
opinion that the aforementioned copy of the tenant's check which
was submitted to the rent agency in the amount of $1,550.00, was
sufficient to show that the owner unlawfully collected $50.00 from
the tenant.
Accordingly, the Commissioner finds that the Administrator
directing the owner to refund $50.00 to the tenant for the door
lock was proper.
Based on the above-mentioned facts, the Commissioner finds that
the owner's petition should be denied.
The owner is cautioned that rents for the period subsequent to
November 30, 1987 should be based upon the amount of $711.80 per
month including garage service for the lease period of December 1,
1986 through November 30, 1987 as determined by the Administrator,
and that any demand for and collection of an amount in excess of
the lawful amount may give rise to a new overcharge complaint, in
which treble damages may be awarded.
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,
and that the Administrator's order be, and the same hereby is,
affirmed; and it is
FURTHER ORDERED, that rents after November 30, 1987 shall be
based upon the $711.80 monthly rent including garage space; and it
is
FURTHER ORDERED, that the owner shall immediately refund to the
tenant all amounts not yet refunded representing overcharges,
penalties and treble damages; and it is
FURTHER ORDERED, that if the owner has refunded no such amounts
upon the expiration of the period for seeking judicial review of
this order pursuant to Article 78 of the Civil Practice Law and
Rules, and the tenant has credited no such amounts, the tenant may
file and enforce a certified copy of this order as a judgment for
the amount of $1,081.40 against the owner, Arthur T. Mott.
ISSUED:
Joseph A. D'Agosta
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