Docket Number: EJ 710311-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.: EJ 710311-RO
:
THE BECHTOLDT CORP., DRO DOCKET NO.: ED 710004-R
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
AND REMANDING PROCEEDING TO THE DISTRICT RENT ADMINISTRATOR
On October 30, 1990, the petitioner-owner filed a Petition for
Administrative Review of an order issued on September 25, 1990, by
the District Rent Administrator, 50 Clinton Street, Hempstead, New
York concerning the housing accommodations known as Apartment 1-V at
599 Front Street, Hempstead, 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 the record relevant to the
issues raised by the petition.
This proceeding was originally commenced on March 28, 1990 by the
filing of a rent overcharge complaint by the tenant. The tenant
took occupancy pursuant to a lease commencing November 1, 1989 and
expiring October 31, 1990 at a monthly rent of $830.00.
In the order under appeal herein, the District Rent Administrator
established the legal regulated rent for the tenant's initial lease
at $726.23 based on the rent in the last completed lease ($607.21)
increased by a guideline and vacancy allowance. The Administrator
determined that the tenant had been overcharged in the amount of
$1,185.25 and directed the refund of such amount to the tenant. The
Administrator also imposed a fine of $250.00 on the owner for
failing to provide the Tenant with a notice pursuant to Section 48
of the Regulations informing the Tenant of the prior legal regulated
rent and showing that the amount of increase over the prior rent was
within the guideline.
In this petition, the owner contends that, starting with the rent of
$607.21, the owner is entitled to two vacancy allowances, not one as
the Administrator's order permits.
The tenant submitted an answer to this petition, but did not address
the substance of the owner's petition.
Docket Number: EJ 710311-RO
The Commissioner is of the opinion that this petition should be
granted.
The rental history in this case indicates that subsequent to the
tenancy of the prior tenant L. Lebron at a final rent of $607.21,
the apartment was rented to two prior tenants as follows: from
October 1, 1988 to September 30, 1989 at $750.00 per month to A.
Ferguson; from April 1, 1989 to March 1, 1990 at $750.00 per month
to T. Domford.
By order of the Nassau County Rent Guidelines Board, the vacancy
rents for apartments rented between October 1, 1988 and September
30, 1989 and between October 1, 1989 and September 30, 1990 are to
be determined as follows:
When an apartment becomes vacant, the last legal
regulated rent for that apartment may be increased
to the highest level regulated rent for an apartment
of the same size within the building or complex, but
may not exceed 15% above the prior legal regulated
rent. Once a legal regulated rent is established
for an apartment based upon the vacancy, that
becomes the vacancy legal regulated rent until the
termination date of the lease. The comparable rent
shall be determined at the time the first vacancy
occurs for each size apartment in the building or
complex and shall remain the comparable rent for
the balance of the guideline year. The landlord
must notify the incoming tenant of the apartment
used as the basis for the new legal regulated rent.
The record in this case indicates that the Administrator failed to
apply the above-cited guideline orders to properly determine the
legal regulated rents for the vacancy lease of the prior tenant
Ferguson commencing October 1, 1988 and for the complainant tenant's
vacancy lease commencing November 1, 1989. Pursuant o the above-
cited guideline orders, no increase is warranted for the vacancy
lease of the prior tenant Domford commencing April 1, 1989 as that
lease commenced during the same guideline period as the lease of the
prior tenant Ferguson. The Commissioner finds that the proceeding
should be remanded to the Administrator for proper application of
the above-cited guideline orders.
Section 48 (9 NYCRR 2503.8) of the Tenant Protection Regulations
provides as follows:
(a) A landlord of a vacant housing
accommodation for lease shall make available to
prospective tenants a notice in writing of the
monthly rent under the offered lease, and of the
prior legal regulated rent, if any, which was in
effect immediately prior to the vacancy, and that
any increase in the prior legal regulated rent
under the offered lease does not exceed the
applicable rate of rent adjustment in effect
pursuant to the guidelines filed with the
Docket Number: EJ 710311-RO
Division by the Rent Guidelines Board for the
county wherein the housing accommodation is
located, or as otherwise authorized by the Act.
(b) At the time of renting the vacant
housing accommodation, the landlord shall attach
this notice in writing to the executed written
lease, and deliver a copy of the notice to the
tenant with a copy of the lease, or include a
written provision in the lease setting forth the
prior legal regulated rent, the amount of any rent
increase under the lease and showing that such
increase does not exceed the applicable rate of
rent adjustment in effect pursuant to the
Guidelines filed by the Rent Guidelines Board
or as otherwise authorized by the Act. In the
event the landlord does not comply with this
requirement, the lease shall not be effective to
increase the prior legal regulated rent; however,
at such time thereafter that the landlord does
provide the notice to the tenant with the required
information in writing, the otherwise authorized
monthly rent increase shall be collectible
commencing with the first rent payment date
thereafter.
The record in this case includes a Rent Guidelines Pricing form
indicating how the tenant's rent was calculated. This notice is
signed by the tenants but is undated. The owner states that the
notice was signed by the tenants, but does not indicate if or when a
copy of this notice was actually given to the tenants. On remand,
the Administrator should determine if and when such notice was given
to the tenants. The penalty for failure to provide such notice, as
enunciated in Section 2503.8 of the Tenant Protection Regulations,
is to render the tenant's lease ineffective to increase the prior
legal regulated rent until such time as the notice is given.
Furthermore, pursuant to Section 2506.2(b) of the Tenant Protection
Regulations, the Administrator may assess a fine of $250.00 if the
Administrator finds that the owner willfully violated 9 NYCRR
2503.8.
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 granted, and
that this proceeding be and the same hereby is remanded to the
District Rent Administrator for further processing in accordance
with this order and opinion. So much of the District Rent
Administrator's order as directed a refund is hereby stayed until a
Docket Number: EJ 710311-RO
new order is issued upon remand. However, the Administrator's
determination as to the rent is not stayed and shall remain in
effect, except for any adjustments pursuant to lease renewals,
until the Administrator issues a new order upon remand.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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