LL DENIES RS

[Cazmia]

As expected the owner has appealed..His lawyer is citing cases like Schachter v DHCR and Gersten v 56 7th Ave, LLC to say that the prior administrative determination is binding on DHCR and all subsequent parties. However, the administrative determination that stated the building was 5 units and not subject to RSL 20 years ago was a rent overcharge complaint. Our current administrative determination was a proceeding opened strictly to determine whether the current tenants are rent stabilized or not, so I don't feel this lawyers theory of administrative finality applies to us since we weren't even there all those years ago to appeal such an order...

[Cazmia]

Hi guys, just reposting this here per TN's suggestion, because we know many have been following this post! We hope others can benefit from our learning experience. Thanks!

"OWNER OFFERS LEASE BEFORE LEGAL RENT HAS BEEN ESTABLISHED"

Good evening,

My question has to do with a rather unique and "landmark" case and bares some background before I ask it..

I am the tenant who came to Tenant Net in 2013, because I live in a 6 unit building that was down on public record as a 5 unit. The owner at the time wanted to vacate us all and I brought our case to DHCR and a vicious 5 year battle ensued. This year, the owner's PAR was denied and rent stabilization was reaffirmed (the owner may still bring an Article 78.)

All the tenants just received rent stabilized leases under their doors via FedEx from our newest owner (who just bought the building last year).

However..in 2013 we filed rent overcharge complaints due to the fact that the building has NEVER in all it's existence, been registered with DHCR. (Although a rent controlled tenant lived in the sixth apartment long ago.)

Having been held up by the landlord's appeals, the rent overcharge complaints are still being processed, so we really don't know what our legal rents are. Although the landlord lowered the rent in the rtp-8 lease, wouldn't signing it be legally binding us to the rent amount on that lease? Would signing his lease be us accepting that the amount he states in it is our legal rent?

For instance, if the lease says $1,200, how do we know DHCR can't go back 20 years and discover that our rent should actually be $500..Then what happens if we sign the $1,200 lease? I distinctly remember a case in which DHCR went back more than 4 years, in lieu of an owner's wrongdoing.

DHCR has no idea when the owner added the sixth apartment, but we met our criteria of evidence in proving that it has been six units for at least a decade. I know that once an owner presents a lease, we cannot ignore it, because that could be grounds for eviction.

I'm not sure what to do with the lease we've just been sent. As President of the Tenant's Association, I don't know how to advise the other tenants, either..

[Cazmia]

We will be contacting the agency and our lawyer soon about the leases, but are confused about the amount of time the owner has to file an Article 78.

A legal website I visited claims an Article 78 must be filed within 4 months or 120 days. However, I thought I remembered seeing in our paperwork that the owner has 60 days to file, not 120.

Can anyone confirm when the cutoff time is to file an Article 78 after the deputy commissioner's final PAR decision has been issued?

Thanks!

[TenantNet]

First, get very familiar with Article 78's. Start here: https://codes.findlaw.com/ny/civil-prac ... -7801.html

or https://law.justia.com/codes/new-york/2 ... rticle-78/

Regular Article 78's (which is more or less an appeal of a government agency's decision) must be filed within 120 days of the decision (4 months). See https://codes.findlaw.com/ny/civil-prac ... t-217.html

However, there is a provision in CPLR and the Rent Stab. Code that limits the time to commence an appeal of a DHCR PAR order pursuant to Article 78 to 60 days for residential rent matters:

https://govt.westlaw.com/nycrr/Document ... sc.Default)

A proceeding for judicial review of an order issued pursuant to section 2526.2(c)(2) or section 2529.8 of this Title shall be brought within 60 days after the issuance date of such order. Issuance date is defined as the date of mailing of the order.

There is a similar provision on CPLR, but I can't find it right now.

[Cazmia]

Thank you, thank you, thank you! For the life of me, I couldn't find where I'd seen that law.

[TenantNet]

BTW, any DHCR PAR decision should have a page added to the end of it stating that you have 60 days to file an A78. It's called "Right to Court Appeal" You can see one at the last page of this PDF:

http://www.rivkinradler.com/wp-content/ ... -19-16.pdf

[Cazmia]

Good afternoon,

Research on this case has been difficult, because as far as I know, our case is pretty unique. There are cases like Grimm, in which the DHCR was able to go back more than four years because there was fraud present. Our situation seems very similar in that none of our initial leases contained RS riders and that there has been a "building-wide scheme" to deny rent stabilization to all tenants.

However, in Grimm, the owner had once registered a legal rent at some time for the unit, so there was an amount to go on. In our case, the owner has NEVER registered so we have absolutely no legal rent amounts to go on.

As I said, we all have an initial lease, but the contention is that since they were not RS leases and the owner never registered with DHCR, we cannot confirm that the rent stated is the legal rent.

Also, although DHCR definitively states that we are RS, the agency does not know when the 6th apartment was added. Although there are records showing the sixth unit was rent controlled in the 1970's and court records showing a tenant lived in the sixth unit in the early 1990's, our case was decided based upon the fact that the sixth apartment has existed since after 2001.

During a DHCR complaint launched in the 1980's, a paragraph in the complaint stated that the city had established a rent of $500 for a 3 bedroom apt. However, that tenant did not win her case, because she stopped answering so no one contended the argument of the landlord at the time that the building contained 5 units (even though an inspection during that proceeding found six units).

We don't know if DHCR will be using our initial leases or if they will be going back decades to determine our rent. 2004 is when the oldest tenant moved in. would the legal rent be the rent stated in the 1980's complaint plus a 20% vacancy increase since, technically, the owner should not have been able to raise the rent without registering..?

Dizzy trying to find other cases like ours, so I at least have a precedent to work with.
No success so far.

Is the proper thing to do to send our leases back with a note saying that, while we fully intend to continue our tenancy, we cannot be sure that the amount stated in the lease in correct..

..Or is there a more uniform and professional way to respond to the lease offers?

[Cazmia]

We received advice from our lawyer that, if our apartments have never been registered at all (which they haven't), that we would need to petition the DHCR to determine the legal rent which would essentially be the fair market rent.

I can't help but feel like this makes no sense. How would this owner be due a fair market rent for decades of lying about the rent stabilized status of the building??

I personally have lived here over a decade and had one lease which stated my rental amount. Are my lawyers trying to tell me that by contending my lease for the owner's failure to file that the Agency could determine my rent should actually be much higher? Because fair market rents in my neighborhood are enormous!

I want to believe there is something I have failed to understand and that I'm making a completely absurd assumption..

[TenantNet]

I honestly don't know how to answer this. DHCR has a thing called the default formula ... and I'm not that familiar with it. But I just Googled "dhcr rent stabilization default formula" and found some things.

See https://www.landlordvtenant.com/article ... -date-rent

Also RSC section 2522.6
https://govt.westlaw.com/nycrr/Document ... 17e6e0f345

Perhaps Thornton v. Baron might help:
http://tenant.net/phpBB3/viewtopic.php?f=16&t=8968

[Cazmia]

Thank you,

I will be taking some time out to visit our local dhcr location in the Bronx asap and speak to someone there. They might not be able to offer official legal advice, but I'm sure they are the authority on issues of this sort. Hopefully, they will have some answers there, and I won't have to make the trek downtown to the Rent Admin unit. Nevertheless, it's worth the effort to find out.

I love your links to LVT. That site has taught me a lot as well and I will keep reading.

Thank you!

[TenantNet]

LVT started out in the 1970's with a book called SuperTenant. That's almost impossible to find these days (I have one of the few copies). Even if you found one, it's completely out of date.

Then they sold out to the landlords and started LVT and Apartment Law Insider. Both were informative, but the cost was impossible for regular tenants. Only landlords can afford these. For a while they also had Shapiro's DHCR Finder - but I think that's no longer published.

So remember the information from LVT might be skewed in favor of landlords.

Also understand that there is likely an illegal agreement with DHCR where the agency will not release information to tenant groups in the same manner that they make easy for landlords.

[Cazmia]

The owner did file an Article 78 against DHCR. We have not been contacted, so I am assuming we will not be parties, since, technically, it is the owner versus DHCR.

Being the worrywart that I am, I just wonder..as tenants who will all be gravely affected, can we appeal if the decision turns out not in DHCR'S favor?

Or will we not be able to do anything to save our homes if an adverse decision occurs, since we were not Defendants in the Article 78?

[TenantNet]

On the A78, you can contact the DHCR Legal Dept and ask to speak to the attorney handling the case. Or you can also ask to speak with the "attorney of the day." That dept is at 25 Beaver St. in downtown Manhattan

This might work: 212-480-7425, -7471 or -6789 (the first number should work - I think it's the reception desk.

Did you get a notice from DHCR that the A78 had been filed? There might be a phone number on that.

Some times DHCR just walks through a case agreeing to send it back - to get reversed. You can let the attorney know how important this is to you and that he/she should fight for it.

You can/should also intervene on the case yourself. I've done it on my own but you can do it with a lawyer - it gets complicated. You would have to write and submit briefs seeking intervention, and serve it on all parties (DHCR and the LL). Usually DHCR will not object but the LL might. So the judge would decide.

Remember that the DHCR attorney does not represent you, but the agency, and because of that some time they let things slide. If you're not a party, you can't appeal further.

If the case is remanded back, often that means that DHCR is willing to relook at things and the case could be redecided in favor of the LL. This happens more than you think.

A78 are essentially paper submissions, not trials. Some don't even have oral arguments.

[Cazmia]

I had no idea DHCR could simply allow a case to be remanded back to them that way. That is scary.

DHCR had hearings where all the tenants testified. They also submitted the 85 page testimony and opinion of the ALJ attached to the Commissioner's ruling.

Do you really think after all that the case could simply be remanded? How it can it go all the way back to a Rent Administrator, after it has gone full circle through a hearing overseen by an Administrative Law Judge and a Commissioner's final Ruling?

Even the printed decicion said that the owner could not further appeal his PAR to the DHCR, that the only means was an A78..

[TenantNet]

Yes, it is scary, and DHCR does it all the time. If the LL protests strongly, they often back down.

If you had real hearings (not just conferences), the testimony would be part of the record. Tenants are party to the proceeding before DHCR, but not automatically parties to the court appeal.

With the PAR decision, you should have gotten a notice from DHCR, titled "Right to Court Appeal." See the last page of this PDF http://www.rivkinradler.com/wp-content/ ... -19-16.pdf

If you make a motion to intervene, you also have to submit at the same time your papers why the LL's appeal should be denied.

The LL might agree to your intervention. but they might not. Usually judges will allow tenant to intervene.

When you contact DHCR Legal, ask then to send you a copy of the LL's papers. They usually will do that. You might have to seek more time to answer (I'm not sure how to do that). But either way you have to start on this ASAP.

A78 stands for Chapter 78 of the CPLR "NYS Civil Practice Law and Rules." Google it and you'll find out a lot.

I have seen cases that were slam dunks for tenants get remanded. The system is fixed. A remand is not a further appeal within DHCR; it's sending it back to do over, or perhaps to do over on partial issues.