GB110375RO
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. GB110375RO
20 Mott Place Corporation : DRO DOCKET NO.ZEA110373R
TENANT; Laverne Eubanks
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On February 14, 1992, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
January 31, 1992 by the Rent Administrator, 92-31 Union Hall
Street, Jamaica, New York, concerning the housing accommodation
known as 20 Mott Place, Apartment 1D, Far Rockaway, New York
wherein the Administrator determined that an overcharge had been
collected and directed the owner to refund overcharges of $415.60
inclusive of excess security and treble damages.
The Commissioner has reviewed all of the evidence in the record and
has carefully considered that portion of the record relevant to the
issue raised in the administrative appeal.
This proceeding was commenced on January 29, 1990 when the tenant
filed a complaint of rent overcharge in which the tenant stated
that the owner was requesting an increase of $254.12 per month. In
answer to the complaint, the owner stated that instead of making
repairs, with the tenant's consent, it had made major renovations
at a $10000.00 cost. Once the work had been completed, the tenant
objected to the rent increase. The owner included with its
response a copy of the tenant's written consent and signed
statement, verifying that the work had been completed
satisfactorily, as well as cancelled checks and a detailed
contract, specifying the work to be done and its cost. By its
answer, the owner indicated a misunderstanding of DHCR regulations
in that it believed (incorrectly) that it could not collect a rent
increase for the improvements until it had received approval from
the Division.
In reply, the tenant asserted that the owner had been compelled to
make repairs because of outstanding violations but that she had not
consented to a rent increase for the alleged improvements.
Although she had signified satisfactory completion of the work
done, some work had not been done at all and some had been done
very poorly.
In the order here under review, denying the owner a rent increase
for improvements because the tenant denied consent and because the
owner continued to accept rent payments without taking into account
the rent increase for improvements, the Administrator determined
that an overcharge had occurred based on the owner's collection of
an inccorrect guideline adjustment and directed the owner to refund
$415.60 in overcharges inclusive of excess security and treble
damages.
In its appeal, the owner contends that the overcharge found by the
Administrator was due to an inadvertent miscalculation and should
not be considered willful. The owner further contends that it
should be permitted to collect a rent increase for apartment
improvements which it failed to collect because the tenant refused
to sign a renewal lease with the increase until it was approved by
the DHCR and because the consent form signed by the tenant stated
that the rent increase would not take effect until DHCR approval
had been granted.
The tenant contends that the finding of willful overcharge should
be sustained, that there were no improvements but that there were
court ordered repairs for which the owner should not be permitted
a rent increase.
After careful consideration, the Commissioner is of the opinion
that this petition should be granted.
Pursuant to Section 2522.4(a)(1) of the Rent Stabilization Code, an
owner is entitled to a rent increase where there has been a
substantial increase of dwelling space or an increase in the
services, or installation of new equipment or improvements provided
in or to the tenant's housing accommodation on written tenant
consent to the rent increase. A rent increase based upon this
Section of the Code does not require prior DHCR approval.
GB110375RO
Review of the record reveals that the documentation, an executed
contract, cancelled checks and written tenant consent confirm that
GB110375RO
the owner complied with the Division's requirements pursuant to
Code Section 2522.4(a)(1). The contract with payment verified by
cancelled checks show that far more than repairs was accomplished.
With the exception of a medicine cabinet , the tenant certified
that all work was done.
Accordingly, the Commissioner find that the owner is entitled to a
rent increase for these improvements. The Commissioner notes that
the owner never willingly waived the right to this rent increase,
specifically reserving said right in the lease renewal form dated
October 1, 1990 and covering the period January 1, 1991 through
December 31, 1992. The evidence of record shows that the owner,
having spent $10,000.00 on improvements, was entitled to a rent
increase equal to 1/40th of the cost or $250.00 per month. The
Commissioner finds therefore, that the $10.39 collected by the
owner beginning January 1, 1991 is not an overcharge but represents
a portion of the rent increase to which the owner is entitled. The
owner may begin to collect the additional increase of $239.61
($250.00 - $10.39) prospectively on the first rent payment date
after the issuance date of this order and opinion.
The owner is directed to make any and all necessary repairs
including repairs or provision of a new medicine cabinet or the
tenant may file for a rent reduction based upon a reduction in
required services.
The owner is further directed to reflect the findings and
determinations made in this order on all future registration
statements, including those for the current year if not already
filed, citing this Order as the basis for the change. Registration
statements already on file, however, should not be amended to
reflect the finding and determinations made in this order.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is granted, and
the Rent Administrator's order be, and the same hereby is, revoked
and it is found that no rent overcharge occurred.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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