Docket No.: FA 810091 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.: FA 810091-RO
SULEIMAN RABADI, DISTRICT RENT ADMINISTRATOR'S
DOCKET NO.: YCF-8-1-0169-R
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On January 11, 1991, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
December 13, 1990, by the Rent Administrator of the White Plains
District Rent Office, concerning the housing accommodations known
as 25 Overlook Terrace, Yonkers, New York, Apartment 5A, wherein
the Administrator determined the overcharge complaint filed by the
tenant in June 1988.
The Administrator's determination also reflected certain findings
of fact.
The Administrator found that while the registered rent for the
previous tenant was $375.00 in 1985, prior to the tenants
occupancy, there was no record that the apartment was registered
again until 1988, at which time the registered rent was listed at
$440.00.
The Administrator found no credible evidence that the tenant was
permitted to pay a reduced rent of $300.00 in January 1986 based
on a familial relationship. The Administrator also rejected a
purported "renewal lease" dated April 28, 1986 at a monthly rent
of $440.00, submitted by the owner, because it contained no
effective date and was inconsistent on its face, in that it
indicated that it was offered to the tenant in August 1, 1986,
although it was "signed" by the tenant on April 28, 1986.
The Administrator concluded that no lease was given to the tenant
upon occupancy, that the tenant was not informed that the legal
rent for the subject apartment was in excess of the rent charged
until 1988, and that therefore, the owner had failed to reserve
any right to collect a rent higher than that charged the tenant
during 1986 and 1987. The Administrator established the legal
regulated rent at $300.00 effective January 1, 1988 and at $327.00
effective July 1, 1988 through June 30, 1990, found an overcharge
for the period January 1988 through July 1989, and ordered a
refund, including treble damages, in the amount of $7,785.00.
On appeal, the petitioner argues that the Administrator
disregarded the rental history of the apartment for the period in
question, failed to consider rents charged for comparable
apartments, and failed to consider the owner's argument that the
tenant, the tenant's son or someone else may have signed the April
Docket No.: FA 810091 RO
1986 renewal lease (RTP-8), despite tenant's contention that he
never received or signed the RTP-8.
The petitioner further avers registration forms were filed timely
and properly, and that the owner was ready to submit proof of
service on the tenant but was never requested to do so below.
The applicable law is Section 2506.1 of the Tenant Protection
Regulations.
After careful consideration the Commissioner is of the opinion
that the petition should be denied.
The owner's claim that the tenant was given a preferential rent in
1986, even if correct, cannot be used as a basis to set the
initial regulated rent at a rate other than that charged and
collected. There is nothing in the Emergency Tenant Protection
Act or Tenant Protection Regulations that prohibit an owner from
charging less than the maximum permissible rent; and once an owner
does so, the actual charged became the lawful stabilized rent.
While the Division permits the owner to base future rent on a
higher rent where it has been determined that a "sweetheart rent"
lower than the legal rent was charged based upon some incentive
provided by the tenant, the record does not reflect the presence
of such inducement. In fact, the record presented by the owner
reflects a constant dispute between the parties with regard to the
rent charged and the rent collected. In light of the apartment's
rental history, the rents for comparable apartments were
irrelevant to these proceedings.
As regards to the purported April 1986, RTP-8 "lease renewal",
submitted by the owner, the Commissioner notes that the owner
prepared and served the form on the tenant for his signature. If
the owner believed that there were irregularities in the tenant's
signature, it was incumbent upon the owner to take prompt legal
action to compel the tenant to correct any irregularities. As the
owner both prepared the form and submitted the evidence, the
unexplained inconsistencies, apparent on the face of the RTP-8,
were properly construed against the owner.
The Commissioner similarly rejects the petitioner's assertion that
it d d not have the opportunity to submit proof of non-
registration for the period from 1985 to 1988, which the
petitioner claim to have in his record. In fact the record
reveals that registration records were submitted below and at PAR
for the subject apartment, and other apartments in the subject
premises, but did not include rent registrations for the 1986 -
1987 period for the subject apartment.
Docket No.: FA 810091 RO
The Commissioner notes and rejects the petitioner's argument that
the overcharges were neither willful or negligent, arguing that
the fact that the case took over one and a half (1-1/2) years to
decide verifies the difficulty encountered to determine the legal
rent.
The Tenant Protection Regulations assesses treble damages where
the overcharge is willful or negligent. It is the burden of the
owner to overcome the presumption of willful or negligent conduct.
The owner's admission that it attempted to impose a rent at a rate
higher than that initially charged and collected reflects a
knowing attempt to collect excess rent in violation of Division
policy that once an owner charges less than the maximum
permissible rent, the actual rent charged becomes the lawful
stabilized rent. The time lag between the time the tenant filed
the complaint and the date of the Administrator's order, reflects,
among other items, the owner's failure to establish by
documentation that it complied with the applicable regulations,
requiring the Administrator to establish the relevant facts by
testimony at a hearing.
THEREFORE, in accordance with the Tenant Protection Regulations
and the Emergency Tenant Protection Act of 1974, it is
ORDERED, that this petition be, and the same hereby is, denied
and that the District Rent Administrator's order be, and the same
hereby is, affirmed.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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