Landlord Refusing to Acknowledge RS Status, Jacking Up Rent

[matt98]

Hello,

My roommate and I currently live in Brooklyn and have since November 2020.

During our tenancy, we ran into many issues with lack of heat, water, etc. We started considering legal options and were advised to request our unit's rent history. When we did, we found out that the previous tenant had been paying $745.92/mo back in 2014 and nobody else had been registered on the history since. My roommate and I currently pay $2,650 and have since we moved in (Nov 2020).

Upon learning this around September 2021, we had a heated exchange with the landlord who refused to acknowledge the apartment's stabilization status. We were withholding rent in an escrow account at the advice of our free lawyer and were eventually served eviction papers. My roommate and I didn't have enough faith in the lawyer (he was rotating on to our case mid-way and was fresh out of school) to comfortably argue over eviction in court. We ended up paying back what we allegedly owed and decided the simpler option of filing a rent overcharge complaint form. We have yet to receive the results of that complaint.

We've requested our rent history a few times since then and noticed that the LL finally registered the apartment at $2,650 under my name, still with a "RS" status.

Nowhere in any lease that we've signed has the LL provided any rent stabilization documents, for IAI's or anything of that nature. As our lease is coming up for renewal in May, LL sent over a new lease. This lease states:

"NO RENT STABILIZATION AND NO RE-PAINTING BY LANDLORD: THIS IS NOT A RENT STABILIZED LEASE AND THE RENT STABILIZATION CODE OF NEW YORK STATE DOES NOT APPLY TO THIS APARTMENT OR THE TENANT RENTING IT. THE LANDLORD HAS THE SOLE, ABSOLUTE, AND UNFETTERED DISCRETION TO DECIDE WHETHER TO OFFER A RENEWAL OF THIS LEASE AND THE RENEWAL RENTAL RATE, IF ANY. (...)" [see "Clause 73 attachment"]

This clause prompted me to re-request the rent history from DHCR. Please see Rent History photo attachment for the rent history provided by DHCR on 3/17/23.

Can you please advise what we should do next? I do not want to sign this lease as it completely denies the rent stabilization status of the apartment and the rent was raised $250 but am concerned about the implications of continuing on without a lease.

Should I just continue to pay the $2,650 that we're normally at? Do we ask the LL to provide documentation justifying the attached clause? Do we have to agree to the increase of $250 and wait for DHCR to finally solve our case? What would you do.

Thank you so much!!!!

[TenantNet]

I'm assuming both of you are on the lease as co-tenants, yes?

The bad news is that there is a 4-year "lookback period" when making an overcharge complaint. That means if you file today, DHCR would only go back to 2019 (4 years) to see what any increases might be appropriate.

We believe that the apartment's status is not limited by the 4 year period. But we'll try to verify that. If so, that might mean the unit is RS, but at the higher rent. If you can show deliberate fraud, there might be a way around the lookback, but that's very hard to show. Bottom line, you might be stuck on that.

You say you have a lawyer. What did he/she say on this? Problem is there aren't enough free attorneys out there, especially with the COVID backlog.

The registration, even if done late, certainly helps with a status determination, but it might not be the final say. I don't think it would change the rent ... unless he filed retroactive to 2014. It gets a little tricky, and DHCR has a habit of screwing tenants. Depending on your situation, it might be an option to withdraw the overcharge complaint and let the registration stand. But I can't say for certain (and we're not attorneys).

OTOH, if it's a strong case - no IAIs, etc., it might be worth continuing the matter.

If RS, then the LL is required to offer renewals on DHCR Form RTP-8 and follow those rules. That he says "No RS" is pure bull. His registration, in my view, admits it is. Did he follow RGB guidelines for the rent? If it were me, I would refuse to sign that lease and demand a RTP-8 renewal form.

As for painting, that is not a RS thing. It applies to all tenants, RS or not. The LL must paint every three years or sooner if it needs to be done. That's in the NYC Housing Maintenance Code, not the RS regulations.

If the LL is being stupid, I'd let him continue to be stupid as he will eventually trip over his statements in court or with DHCR.

Few years back when I was in housing court, the LL's attorney said, "we've completed most of the repairs that are needed," and in the next breath the lawyer said, "the tenant (me) will not give us access." So I pointed out to the judge that both can't be true. If I had denied access (their typical lie), then how could the repairs be mostly done?" The judge understood and the LL's case went downhill from there.

My point is that the LL can't deny RS status in the lease and at the same time register the unit as RS with DHCR. You might want to FOIL the complete file of your complaint to see what else the LL might have sent to DHCR. (they are bad about sharing that stuff with tenants).

If you don't sign a lease, then you would become a "month-to-month tenant" with the rent at the same level as the expired lease (no increase). That assumes the LL accepts your payment. Of course the LL can refuse the rent and commence a holdover proceeding claiming your lease has expired. Your defense would be the RS registration.

In anticipation, I would ask DHCR for a certified copy of the registration/rent history.

[matt98]

Thank God for you! You are highly appreciated.

They claimed IAI's when we initially argued with them. That would mean $75,000-80,000 worth of improvements (highly unlikely, this apartment is not that fancy). Regardless, I wouldn't die on the hill of going back to 745 or whatever, I'd be willing to wait and rely on DHCR.

At the VERY LEAST, I want them to stop upping our rent illegally and claiming it's not rent stabilized. That is the biggest problem here, as I can't pay the upped rent and need to know what to do ASAP. I am worried that if I send them any info on what I'm thinking, they will have more to prepare for in court.

Is FOIL like requesting info on the DHCR case? All I can see is it is pending assignment. Its been over a year.

What is the likelihood of me going to court and getting an eviction on my record?

[TenantNet]

No need to quote my entire reply (I removed it from your reply). Why waste electrons?

One correction. I could have sworn that RS status was not limited by the 4-year lookback. But one tenant attorney with whom I just asked didn't agree (or maybe he didn't understood what I had asked). He said read the Regina, Grimm and Casey decisions. (just Google "Regina NY rent stabilization")

But unless/until there's firm confirmation, I would assume the 4-year holds for overcharges and status.

IAI's at 1/40th the cost were legal up until 2019. But if you challenged that, then they would have to substantiate the expenditure, but only if it took place in the last 4 years. In truth, many IAI's are bogus.

As I said, the registration can be claimed as admitting RS status, at least that's what I would argue. But DHCR might see it differently. And if it is now RS, then even at the higher rent, any increases are limited by RGB percentages, and must be on RTP-8 forms.

Look, this stuff can get very tricky - and we're not infallible by any means. I would get a legal opinion and supply the attorney with all the documents, your leases, registrations and so on.

The less you tell the LL, the better.

FOIL is Freedom of Information Law, overseen by the Committee on Open Govt. But see:

https://hcr.ny.gov/records-access
https://hcr.ny.gov/system/files/documen ... llable.pdf

For access to your case, you will need to show them a utility bill or proof of residency.

I usually go to the DHCR office to inspect - to avoid the $0.25/page fee. And you can take photos of the pages with your phone.

It would behoove you to see what's in the file. Request access. You can go to their office, or ask them to copy everything and mail it to you (they will charge you). Some things can be sent as PDFs, but not everything.

[Cazmia1]

I am a tenant who had a similar problem. My nightmare started in 2013, when a new landlord took over our building and tried to raise every tenant's rent, mine by almost $1,000. I posted here at Tenant Net Forum and also went to my local DHCR for help. Our battle is well-documented and I still live at the apartment I fought for at an affordable rent, btw.

The DHCR rep I met was an angel who said my building was not down as rent stabilized on any current records, BUT he found paperwork going back to the 1990s from other tenants filing rent overcharge complaints and claiming the building was rent stabilized. The further we went back through the records, the more documents we found proving there's a sixth unit in our building which had been utilized for decades as an apartment. You read right, this went back as far as almost 30 years ago.

My suggestion is this: Before this LL brings you to court, fill out a rent overcharge complaint form with the DHCR, please. In the space for reason state that this is a rent stabilized apartment containing more than six apartments and you are being overcharged. This will get the ball rolling. Your landlord will get the paperwork that you are challenging your legal, regulated rent. If and when you are brought to court, your defense will be that you live in a rent stabilized apartment and your legal, regulated rent is in dispute and that you have filed paperwork with the DHCR.

The DHCR will then begin actions such as building inspections, requesting information from you, ect, to prove your unit is RS. In the meantime, since you chose DHCR as your forum to make the determination first by filling out a rent overcharge complaint, the courts will likely defer the matter to DHCR and the case will likely be stalled until they make a decision. Mind you, a DHCR administrative determination could be intensive and take years for DHCR to decide. All this time, to my knowledge, they will have to treat you as a rent stabilized tenant until that determination is made. The case will be stalled in court and the landlord will have a hefty fight on his hands.

You must answer every letter you receive from DHCR or else risk losing the case based upon one party no longer answering and the agency assuming there is no longer a matter to be determined, because you are no longer answering/fighting back. Our landlord tried everything. We formed a tenant's association. With the help of our lawyer at Urban Justice, at no expense to us, we united at a DHCR scheduled hearing before an Administrative Law Judge. A DHCR inspector they had sent also verified that he saw existing proof of a sixth unit at that hearing.

The landlord lost his case, and a subsequent Article 78 for the PAR he had filed against their decision. After seven years, we were declared rent stabilized. The LL did not further challenge as it had already cost him over 100,000 dollars in legal fees according to him. So, I believe the answer to your question, based upon my experience at least, is that yes..landlords can get away with not properly filing a building as rent stabilized for decades and enough proof, both current and from way more than 4 years ago can still establish a case for rent stabilization. The 4 year rule may, however, hold for the amount of rent you are paying now, but you do have the right to challenge your legal rent, and unlawful increase, anyway and let the DHCR decide based upon its expertise and the agency's knowledge of its own laws which will naturally be challenged by the LL.

Fill out a rent overcharge complaint and use this as a defense to protect you in court. This is my best advice to you. Hope this helps.

Update: Sorry! I was reading pretty quickly and didn't realize you had filled out a rent overcharge complaint in the past! You should definitely have heard back about it and had a case assigned within weeks, I think. For one, your landlord CANNOT just admit you're rent stabilized one moment and then just take it back another. He is not the one that provides those rights to you, they are written into the laws. Your legal rent is determined by the rent guidelines board and how much of a percentage increase they allow. I would go back to DHCR, explain your situation and ask them for advice. You say he registered you as rent stabilized and then sent you a lease that denies rent stablization. Explain all this to them and tell them you do not want to sign a lease that is more than your legal, regulated rent.

There is also a form for harrassment and a seperate complaint form for the landlord refusing to provide you your rent stabilized lease.

[TenantNet]

Cazmia,

I have not gone back to look at your prior posts.

There are some good people at DHCR, but unfortunately, in our opinion, the main thrust of the agency - and the higher ups - are very much pro-landlord. That's been the case since DHCR took over rent stab back in 1984.

Without looking up the case law on this, if there are 6 units, now, or in the past, then the units in the building should be RS. This might occur if the LL divides one unit into two (or combines two into one), and if the building had 5 units, now 6 (or had 6, now 5).

However, I can't say how the mechanics of this works. If the LL creates a 6th unit, do all units all of a suddenly become RS? Does there have to me a court or DHCR decision? I don't know.

In your case, apparently there were six units in the past. The status of the unit should be/have been RS all along, and due to that, one could argue there had been an overcharge.

You make the distinction between an overcharge (limited to 4 year look-back without an indicia of fraud), and RS status, not being limited by the 4 year period. That's what I always thought, and your case apparently shows that. (BTW, please send us the index number of the A78 by private mail). So I'll have to ask the attorney again; perhaps I didn't ask clearly

With all you've said, one caveat ... in our experience, DHCR is a crapshoot. Yes, in some cases it works out well for tenants. But in many other cases it doesn't. That's why many tenant advocates and tenant attorneys recommend choosing the courts as a forum, not DHCR.

But I'm glad it worked out well for you.

Even if a tenant doesn't get overcharges, being RS can be very important. It can set future increases as limited by the RGB. It gets you a RS lease. It has harassment protections (OK, they're weak, but still once in a rare while, they work). And RS also guarantees continuity of services and that the terms of the lease do not change.

BTW, with all the press, you may have heard about a proposal called "Good Cause Eviciton" being considered by politicians in Albany. We believe GCE to be bad policy and VERY weak protections compared to real rent stabilization. It also precludes advocacy to clean-up DHCR, repeal Urstadt, fix the four year problem and so on. It's being pushed by a bunch of kids who - in many cases - have no real experience with RS, the courts or DHCR. All they do is hold signs and yell slogans. The elected officials love that because all they need to do is beat their chests and not be accountable.