Docket No. BI 710028-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


          ------------------------------------X
          IN THE MATTER OF THE ADMINISTRATIVE     ADMINISTRATIVE REVIEW
          APPEAL OF                               DOCKET NO. BI 710028-RO

                                                  DISTRICT RENT
                                                  ADMINISTRATOR'S DOCKET
          Arthur T. Mott                          NO. H-B-C-7-1-0014-R
           
                                   PETITIONER
          ------------------------------------X


            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 
          a District Rent Administrator concerning the housing accommodation 
          known as Apartment 1-L, 77 Terrace Avenue, Hempstead, New York, 
          wherein the Administrator determined that the tenant had been 
          overcharged.

              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 a rent 
          overcharge complaint by the tenant, dated March 9, 1987.

              The tenant took occupancy pursuant to a one-year lease 
          commencing on February 1, 1987 and expiring on January 31, 1988 at 
          a monthly rent of $600.00.

              The owner's response to the tenant's complaint, dated April 27, 
          1987, stated that the "Tenant receives Section 8 Assistance and 












          Docket No. BI 710028-RO

          therefore not subject to E.T.P.A." (The Commissioner notes that 
          E.T.P.A. stands for the Emergency Tenant Protection Act of 1974.)

              On May 6, 1987, the Administrator mailed a notice to the 
          subject owner requesting that he submit a copy of the prior 
          tenant's lease, within twenty days of the above-mentioned date.  
          The notice also stated that the "fact that the subject tenant is 
          subject to Section 8 does not eliminate his protection under 
          E.T.P.A."


              The owner submitted a response, dated May 10, 1987, which 
          alleged that in a prior rent agency order, under Docket No. FTC-84- 
          126, the District Rent Administrator held that the "Division has no 
          jurisdiction over tenants who are in the Section 8 program." (To 
          his response the owner attached a copy of the above-mentioned 
          order.)  The subject owner also stated that the "tenants portion of 
          Section 8 rent amounts to $415.92, an amount lower than the Legal 
          Regulated Rent."

              On May 13, 1987, the Administrator mailed a notice to the owner 
          stating that the rent agency still had not received a copy of the 
          tenant's prior lease.

              The owner's response, dated May 27, 1987, alleged that the  
          subject tenant's rent was established at $508.00 per month, 
          pursuant to a lease with the U.S. Department of Housing and Urban 
          Development (H.U.D.), under the Section 8 program, and that the 
          subject tenant's portion of the rent was $323.00 per month.  The 
          owner further alleged that the subject tenant entered into an 
          agreement with the owner to rent storage space and parking 
          facilities for $65.00 per month.

              The owner reiterated his assertion that the rent agency has no 
          jurisdiction over the subject tenant as she is a "Section 8 
          tenant."  The owner also stated that:  "Interference by the 
          Division at this time will result in the owner discontinuing all 
          Section-8 tenants leases."

              To his response the owner attached a partial copy of the above- 
          mentioned lease with H.U.D (the owner failed to send page 2 of the 
          lease with H.U.D., and the bottom right hand corner of the lease is 
          obscured with a copy of a business card which is blocking several 
          provisions of the lease) which states that the subject tenant's 
          portion of the rent is $323.00 per month.

              The owner also attached a copy the prior tenant's lease which 
          commenced on January 1, 1986 and expired on December 31, 1986, at 
          a monthly rent of $326.55.  Additionally, the owner attached a copy 
          of the aforementioned agreement entered into between the owner and 
          the tenant for the renting of storage space and parking facilities 
          for $65.00 per month.






          Docket No. BI 710028-RO


              The Administrator wrote a letter, dated June 24, 1987, to the 
          Administrator of the Section 8 program in Nassau County informing 
          him of the facts of this proceeding, and requested "the rental 
          breakdown between your office and the tenant."

              In a letter to the Administrator, dated June 29, 1987, the 
          above-mentioned Section 8 Administrator stated:

               The Section 8 contracts that were executed with the owner 
               and tenant were approved for a rent of $508.00 per month, 
               based on the owners written request.  This office has no 
               way of determining if the rent requested by an owner is 
               the legal rent approved by rent stabilization.  That is 
               the responsibility of the owner.

               We intend to advise that owner that we are now aware that 
               the legal rent is $366.84, as you advised.  Payments will 
               be adjusted and reimbursement demanded for overpayment 
               made to him by this office.  The tenants share of $323.00 
               remains the same regardless of the reduction.

              In the order reviewed herein, the Administrator determined that 
          the subject tenant's legal regulated initial rent was $404.61 per 
          month (prior tenant's rent of $326.55 per month increased by 4% for 
          a one-year guideline increase  and $65.00 per month for parking and 
          storage space), and that the owner had collected $516.95 in excess 
          rent ($508.00-$404.61= $103.39x5 months).  The Administrator 
          ordered the subject owner to refund the $516.95 to the "Section 8 
          program."

              The owner's petition reiterates that the rent agency in a prior 
          decision, under Docket No. FTC-84-126, issued on August 22, 1985, 
          held that: "This Division has no Jurisdiction over tenants who are 
          in the Section 8 program."  The owner's petition also asserts that 
          the subject tenant "voluntarily withdrew" the complaint pursuant to 
          a letter, dated July 30, 1987.  Furthermore, the owner alleges that 
          the lease he entered into with H.U.D "takes precedence" over the 
          rent regulations; that the tenant's portion of the rent was $323.00 
          per month which is less than the legal regulated rent which was 
          established by the Administrator, and that the rent agency has no 
          authority to issue a decision in this proceeding as the tenant's 
          portion of the rent is less than the legal rent.

              After careful consideration, the Commissioner is of the opinion 
          that this petition should be denied.

              The Commissioner finds that the rent agency has jurisdiction 
          over the subject tenant in this proceeding, as there are no 
          provisions in the lease entered into with H.U.D. exempting the 
          subject apartment from rent regulations.  The Commissioner further 
          finds that there is nothing in the State Tenant Protection 












          Docket No. BI 710028-RO

          Regulations (STPR) that exempts a tenant who is receiving 
          assistance under the Section 8 program from the jurisdiction of the 
          rent agency.

              As to the order that is attached to the owner's petition, under 
          Docket No. FTC-84-126, the Commissioner finds that order to be 
          irrelevant to this proceeding as it pertains to premises that are 
          not involved in this proceeding.  The Commissioner further finds 
          that the Administrator's determination, under Docket 
          No. FTC-84-126, is not the rent agency's current policy.

              As to the owner's assertion that the tenant withdrew her 
          complaint, the Commissioner notes that letter in which the tenant 
          withdrew her complaint was notarized on August 20, 1987, and 
          therefore, the Commissioner finds that the subject tenant signed 
          the above-mentioned letter on August 20, 1987, which is after the 
          issuance of the Administrator's order.  Accordingly, the 
          Commissioner finds that the subject tenant may not withdraw her 
          complaint after the issuance of the Administrator's order.

              The Commissioner notes that in the letter from the 
          Administrator of Nassau County's Section 8 program, dated June 29, 
          1987, the Section 8 Administrator stated that: "The Section 8 
          contracts that were executed with the owner and tenant were 
          approved for a rent of $508.00 per month, based on the owners 
          written request.  This  office has no way of determining if the 
          rent requested by an owner is the legal rent approved by rent 
          stabilization, that is the responsibility of the owner."

              Accordingly, the Commissioner finds that the rent in the lease 
          H.U.D. entered into with the subject tenant and the subject owner 
          is subject to the STPR.

              The Commissioner finds that the fact that the subject tenant's 
          portion of the rent was less than the legal regulated rent does not 
          relieve the subject owner from refunding the excess rent that he 
          collected, pursuant to Section 2505.1 of the STPR.  The above- 
          mentioned section states: "It shall be unlawful, regardless of any 
          contract, lease or other obligation heretoforo or hereafter entered 
          into, for any person to demand or receive, any rent for any housing 
          accommodations in excess of the legal regulated rent...."

              The owner is cautioned that rents for periods subsequent to 
          July 31, 1987 should be based upon the amount of $404.61 for the 
          lease period of February 1, 1987 through January 31, 1988, 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 if warranted.

              Accordingly, the Commissioner finds that the Administrator's 
          order should be affirmed.







          Docket No. BI 710028-RO

              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 Rent Administrator's order be, and the same hereby is, 
          affirmed.

          ISSUED:



                                                                            
                                             Joseph A. D'Agosta
                                             Acting Deputy Commissioner






    

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