DOC. NO.: EJ 810136-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.: EJ 810136-RO
                    MAYERHAUSER REALTY, INC. :
                                  PETITIONER :   DRO DOCKET NO.:
         ------------------------------------X   YDE 8-1-0006/R


                          ORDER AND OPINION DENYING PETITION
                              FOR ADMINISTRATIVE REVIEW


         On October 17, 1990, the above-named petitioner-owner filed a Petition 
         for Administrative Review of an order issued on September 13, 1990, by 
         the District Rent Administrator, 55 Church Street, White Plains, New 
         York, concerning the garage space rented by the tenant of Apartment 
         #2D at 900 Palmer Road, Yonkers, New York, wherein the District Rent 
         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 record relevant to the issues 
         raised by the administrative appeal.

         This proceeding was originally commenced on May 2, 1989 by the filing 
         of a rent overcharge complaint by the tenant, claiming that she was 
         being overcharged on her garage rent.  The tenant challenges an 
         increase from $40.00 to $60.00 effective April 1, 1989, in her garage 
         rent.

         The owner was served with a copy of the complaint and was requested to 
         submit rent records to prove the lawfulness of the rent being charged.  
         In answer to the complaint, the owner stated that the property has 
         been owned by a cooperative apartment corporation  since January 31, 
         1983; that at no time has the garage facility been linked to any 
         individual apartment; that the rate was increased from $40.00 to 
         $60.00 per month effective April 1, 1989 by decision of the Board of 
         Directors of the Cooperative; that no grounds for an overcharge 
         complaint exist since the prior rental rate had been in effect for 
         more than 22 years, and the newly-effective rate has been applied 
         equally to all residents, whether shareholders or renters.
















          DOC. NO.: EJ 810136-RO



         In reply to the owner's answer, the tenant contended, among other 
         things, that the garage is part of the building; that tenants pay by 
         one check for the rent, including garage; that since the building is 
         rent-stabilized, then the garage, being part of the building, is also 
         subject to guidelines.

         Enclosed were supporting documents, including, among other things, a 
         recent rent bill which included the parking rent as part of the base 
         rent.

         By order dated September 13, 1990, the District Rent Administrator 
         found that the garage space was subject to the Emergency Tenant 
         Protection Act and the Tenant Protection Regulations; determined that 
         the legal regulated rental for the garage space was $40.00; and 
         computed the total overcharge, inclusive of interest on overcharges 
         since April 1, 1984, to be $361.19.

         In its petition, the owner contends that since the commencement dates 
         of the apartment and the garage leases were different, the use  of the 
         garage was not connected to the tenancy.  The owner further contends 
         that the applicable guideline increases had never been taken and that 
         the tenant's garage rental remains less than it would have been had 
         the increases been applied; and that to find an overcharge is an 
         inequity.  The owner seeks reversal of the order on these grounds, and 
         on the basis that the Sponsor allegedly protected the right of his 
         tenant to continued use of the garage premises after the building's 
         conversion to cooperative ownership.  The owner states that it was 
         submitting the separate garage lease; however, it was not received.

         The tenant answered, among other things, that the garage lease was 
         connected to her tenancy and that she was always billed, and has paid, 
         for both the apartment and for the garage together.  The tenant 
         further contends that the reason the owner did not raise the garage 
         rent is that as a service previously provided, it was intrinsic to the 
         legal regulated rent.  The tenant additionally states that the garage 
         lease has never been required to be re-executed, and that the garage 
         is not separate, but a part of the building.

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

         Section 2500.3(d) of the Tenant Protection Regulations defines 
         "Essential Services" as "Those services which the landlord was 
         maintaining on May 29, 1974.  These may include garage and parking 
         facilities." 









          DOC. NO.: EJ 810136-RO

         The evidence of record shows that the garage spaces in the subject 
         building have been maintained for over twenty years.  The 
         Administrator was correct in his determination that the garage spaces 
         are an essential service, subject to the Regulations.

         With regard to the owner's contention that applicable guidelines 
         increases had not been taken, and that it would be inequitable to find 
         an overcharge, In Matter of Collingwood Enterprise v. Gribetz, 
         N.Y.L.J., 4.24/75, p. 17, col. 6 (Sup. Ct., N.Y. Co., Fine, J.) holds, 
         in pertinent part:  "... the increases permitted by the Rent 
         Stabilization Law and Code are maximum rents which may not be 
         exceeded; however, nothing therein prohibits an owner from charging 
         less than the maximum rent; where an owner failed to charge an 
         allowable guideline increase prior to the expiration of the guideline 
         period, the lawful rent upon which the rent guideline is computed may 
         not be increased to reflect such previous guideline allowance."  The 
         Commissioner sees no reason that this longstanding policy should not 
         be applied to determinations under the Emergency Tenant Protection 
         Act.

         The Commissioner notes that the conversion of the premises to 
         ownership by a cooperative corporation, and the decisions of that 
         Corporation's Board of Directors, affect neither the status of the 
         parking garage as an essential service under the Tenant Protection Act 
         and Regulations, nor the lawful stabilized rent chargeable for such 
         space.  Although the maintenance that the sponsor/holder of unsold 
         shares must pay is governed by the Corporation's Board of Directors, 
         the rents payable by the stabilized tenants for their housing 
         accommodations are determined by law.


         THEREFORE, in accordance with the Emergency Tenant Protection Act of 
         1974 and the Tenant Protection Regulations, it is

         ORDERED, that this petition be, and the same hereby is denied, and the 
         District Rent Administrator's order be, and the same hereby is, 
         granted.

         ISSUED:

                                                                              
                                                 ELLIOT SANDER
                                                 Deputy Commissioner
            








    

TenantNet Home | TenantNet Forum | New York Tenant Information
DHCR Information | DHCR Decisions | Housing Court Decisions | New York Rent Laws
Disclaimer | Privacy Policy | Contact Us

Subscribe to our Mailing List!
Your Email      Full Name