RS high rent vacancy/preferential rent exemption ?

[merkaba]

Hello

First off thank you for this resource, I so wish I had found it earlier in dealing with the property management for my unit. I did look back through quite a number of similar posts and didnt see anything addressing my particular question - apologies in advance if I missed something.

My LL elected to not renew my lease (I believe in retaliation for me switching from "self paid" to a HRA voucher during my tenancy), and while talking to legal aid they noted that most units in the building were RS . I got the rent history from DHCR and it lists the unit as RS up to 8/31/2018 when the legal regulated rent was $2129.09 and preferential rent was $1580. the actual rent paid column is blank. Seeing this I got excited as it seemed as if I would have a case for the high vacancy exemption to be invalidated until i read an excerpt from this : http://www.itkowitz.com/booklets/Guide-To-The-Housing-Stability-And-Tenant-Protection-Act-Of-2019.pdf
"“An apartment will also qualify for deregulation upon vacancy by the tenant, where a preferential rent of less than $2,500 per month is charged and paid and a higher legal regulated rent has been established.” DHCR Fact Sheet # 36; See RSC § 2520.11[r][5]; [s][2]."

I'm having trouble parsing the statement - is this saying that when the preferential rent is less than the legal regulated rent, then a high rent vacancy removal from RS is valid even if the legal regulated rent has not reached the exemption threshold?

I'm considering filing a complaint with DHCR but dont want to waste my time if there isnt a leg to stand on, so to speak.

Thank you so much.

[TenantNet]

First off, if you have Legal Aid, they have people there who know the law on this. There appears to be some detail you haven't told us. Your status as a RS tenant would determine your rent, and the legal ability of a LL to not renew a lease. If RS, the landlord is required to renew a lease.

Did you file for ERAP? I would do so now no matter what. It would create a stay of any proceedings for up to 12 months, even if you don't get the money (the funding for ERAP appears to have dried-up, but they are still taking applications.

You don't say, but even if there isn't an active court case, it is normally good to file for ERAP. However, we know of one attorney who advises not filing until the LL makes a rent demand. You do not say if you are paying rent, at what legal, or if the LL is accepting it.

Second, units could be deregulated under the old law up through June 2019 if the legal rent hit a certain threshold. The amount you listed is below the threshold. If it's that simple (and it's often not), then a legal rent below the threshold means the LL is required to renew a RS lease. Put aside the pref. rent. If the legal rent is below the trigger point, then the Pref. Rent is not material.

When you say "self paid," do you simply mean you sent in payment from your own funds every month? AFAIK, a voucher should not change your status.

In some cases, if a LL refuses to renew a lease, you might be better off as he can't increase the rent under RS rules. That's "in general," as it can get complicated.

As for DHCR rent histories, that is what the LL has reported to DHCR, and DHCR doesn't check for legality or accuracy. They can be useful, but are not always the last word.

As for the exception, from what you've indicated here, it still looks as if the unit would be below the threshold for deregulation. See https://hcr.ny.gov/system/files/documen ... 2-2020.pdf

You say the legal rent was $2129.09, so during the year 2018, in NYC, the threshold was $2,733.75. I don't see how they can claim high rent deregulation. Has the LL actually claimed that?

[merkaba]

Hi,

I do understand that under RS the landlord is obligated to renew the lease, however they claimed exemption ever since the prior tenant moved out on august 18th, 2018. My looking into this is a result of them not renewing the lease. They are treating it as a market rate unit.

The assistance I began receiving was after signing the lease and initially paying the entire rent out of pocket directly to the property management, and when I began receiving assistance, my rent was then sent to them as checks by HRA every two weeks. So since my rent is 1600, HRA sent out checks for $800 every two weeks, which I explained multiple times to both the property manager and eventually the legal department of the real estate company. However they kept sending notices including 14 day "pay rent or quit" notices despite consistently receiving and cashing the checks - which I now know could have been considered harassment. My income changed recently and so for July and August, the final two months of the lease, I became responsible for paying approx. $500 of the 1600 rent, which I have not done yet for either month. So technically I do owe rent - was planning on getting caught up with my next paycheck.

I spoke to legal aid society once, who referred me to DHCR. I initially was calling legal aid society after being referred to them by the mayors tenant protection office because the property management failed to give 60 day notice of non renewal - I found out informally at the beginning of august via an email about brokers needing access.(there is a notarized statement from a process server from mid May stating that they posted a notice on my door and sent one both certified and first class mail, however I absolutely did not have anything posted on my door or sent to me, and the property manager did not have any record of the service outside the process servers notarized statement, and basically said we will figure it out in court, which makes me wonder if the process server was unable to provide them with any other records of service - I asked for photographs of the posted notice, tracking etc. and property manager said they can only sent the notarized statement and that "the attorneys would figure it out in court" and that the non-renewal was "a business decision") While talking to person who answered the legal aid society helpline, she mentioned that most of the building was RS and that opening a complaint with DHCR could lead a judge to put a stay on any potential holdover eviction which is what led to me requesting the rent history and discovering the high vacancy exemption. It sounds like giving them a call back now that I have the rent history is a good idea.

Yes the landlord did claim the high rent deregulation. I uploaded the part of the rental history showing this if that helps at all. I have not discussed my findings with the LL at all.

I was planning on opening the complaint with DHCR as next steps but will now talk to legal aid society again first. and now, from what I read, it might even be a better idea to wait until the overstay proceedings are brought and use the illegal removal from RS as my defense. My lease ends on the 31st.

[TenantNet]

File for ERAP as soon as possible. And on every check, earmark it. (search this forum for "earmarking"). Don't let them apply payments to months that are unintended.

Legal Aid refers you to DHCR? That's typical. DHCR does not help tenants and I would be suspicious of anything they tell you. Legal Aid should ... however understand the courts are clogged with old cases from COVID.

Legal Aid - we believe - is under contract from the city to help tenants. So if they are not doing so, then they are getting city contracts and shirking those responsibilities. However, they have a point that filing a case with DHCR might trigger a stay of your case.

If you weren't served, that's a defense you can raise in court and you can (in your answer to a Petition) demand a traverse, a mini-trial to determine if you were properly served.

Look for the NYC rules on Process Servers; they are supposed to have a GPS record with the Dept. of Consumer Affairs.

A notice to quit (non-renewal holdover) is one thing, but have you received an actual court petition?

BTW, don't post anything with personal information on the public area of the forum (I removed the link to the jpg). If you need to share something, do it by using th forum's private mail.

[merkaba]

I just submitted the ERAP application and uploaded the documents. Thank you again for that advice and advice regarding how to handle not being served.

I haven't received any court petitions yet - wouldn't they have to wait until lease expiration (8/31/22) to begin any proceeding?

[TenantNet]

Generally, there are two types of eviction cases: a non-payment (not the issue here) and holdover, which is essentially a tenant who has not moved out past the end of the term. The term can run out (8/31/22 as you say) on its own, or if the LL claims you've violated to lease, or creating a nuisance, they can terminate the tenancy early. There are rules for they types of documents to be served on tenants, how service is made and how far in advance.

But in general, if they haven't terminated your tenancy, then yes, they have to wait. They can offer to renew at any point, so it could be resolved before a court case.

A filing at DHCR might stay a proceeding, but you really need to do all the research and have a good case.

ERAP is complicated. It's supposed to stay proceedings for 12 months, but some LLs are fighting back. The money has run out, so we're told, but the filing can create a stay nonetheless.

[merkaba]

Hello, wanted to reach out with and update. I ended up getting approved for ERAP, and signed a Renewal Lease Form for an additional 14 months. During this time period I received a copy of the Annual Apartment Registration from DHCR that showed that my unit had been filed as Rent Stabilized for the year of 2022 (as previously stated in the thread, the first DHCR history I requested showed it had been filed as Permanently Exempt due to High Rent Vacancy on 08/08/2019 - and then exempt again in 2020 and 2021.). Upon receiving the registration I immediately requested another copy of the DHCR Rental History that showed Permanently Exempt in 2019 due to High Rent Vacancy, exempt in 2020, exempt in 2021, and then for 2022, Rent Stabilized with me listed as the tenant and a date of 9/08/22 (I requested the history in 12/22).

I then reached out to the property management company with copies of both the Annual Registration and Rent History and requested an updated, Rent Stabilized Lease. The response was that the Unit was properly deregulated in 2018 and that "what I received reflected an error in filing in April of 2022 which was since corrected in September of 2022 and the unit deleted from stabilized registration." Which I found strange as the request I made was in December of 2022 and it still showed as filed as RS on 09/08/22.

Now the end of my lease is approaching and this time I received a notice of non-renewal via certified mail more than 90 days in advance of my lease end date (10/31). I originally was planning on moving in with a friend as a live-in caregiver, which fell through at the last minute( big life lesson learning experience). So now I am again exploring the viability of addressing the Rent Stabilization issue. I just submitted another request to DHCR for the most current Rent History, and I talked to someone at the mayors office for tenants who said that, even without the "filing error", the fact that the legal Regulated Rent listed on the Rent History was well below the threshold of $2733 and only $2129.09 at the time the owner filed the High Rent Vacancy exemption, that the case seemed pretty cut and dry in my favor.

I'm thinking it might be a prudent next step to send this evidence again to the Property Management/Owners and ask them to have their lawyers take a look at it before they make a decision as to whether or not they want to pursue a holdover eviction, and then if they refuse, inform them of my intent not to vacate and to address it in court, and if it does go to court, challenge the high rent vacancy exemption filed on 08/08/2019. Does that sound like a reasonable next step to you? I'm also wondering if the DHCR Rent History showing the preferential rent at below the threshold for removal at teh time the owner filed the exemption will be enough to warrant the court allowing discovery, or if discovery will even be needed at all. There's also the matter of the "filing error" - can the owner really just negate a filing like that? Any input or advice would be appreciated.

Thank you!