Correct guidelines rate for a rewewal lease

[nycman]

My LL failed to offer me a renewal lease in January 2020 when my last lease was up. Since then I've been a month-to-month tenant. This month, the landlord finally offered a renewal lease to start in January 2020, using the guidelines rate in effect for January 2024.

My understanding is that if the LL fails to offer a timely renewal, they still have to use the guideline rate in effect had they offered a timely renewal. In other words, they can offer a rewewal lease, but they have to use the guidelines rate in effect in January 2020.

According to the regs, found here: http://www.tenant.net/Rent_Laws/RSC/rsc2523.html

(1) Where the owner fails to timely offer a renewal lease or rental agreement in accordance with subdivision (a) of this section, the one- or two-year lease term selected by the tenant shall commence at the tenant's option, either (i) on the date a renewal lease would have commenced had a timely offer been made, or (ii) on the first rent payment date occurring no less than 90 days after the date that the owner does offer the lease to the tenant. In either event, the effective date of the increased rent under the renewal lease shall commence on the first rent payment date occurring no less than 90 days after such offer is made by the owner, and the guidelines rate applicable shall be no greater than the rate in effect on the commencement date of the lease for which a timely offer should have been made.

Can you confirm that I am interpreting this correctly?

[TenantNet]

Have you read the back of DHCR form RTP-8? Does that differ from what you report above? The laws were changed in 2019 as you know. The RSC we have online is outdated ... but DHCR will not put a current version online.

In general, leases should not be retroactive. What you way is confusing, but if the term starts in 2020, that means the LL can charge higher rents for the last three years. If it were me, I would insist on a lease that starts 90 days from when the LL sent it to you (although it would be with the 2023-2024 rates).

[nycman]

Yes, the same language is on the RTP-8. On the question of currency, I believe the current laws can be found here: https://casetext.com/regulation/new-yor ... -procedure

The language is identical:

(1) Where the owner fails to timely offer a renewal lease or rental agreement in accordance with subdivision (a) of this section, the one- or two-year lease term selected by the tenant shall commence at the tenant's option, either (i) on the date a renewal lease would have commenced had a timely offer been made, or (ii) on the first rent payment date occurring no less than 90 days after the date that the owner does offer the lease to the tenant. In either event, the effective date of the increased rent under the renewal lease shall commence on the first rent payment date occurring no less than 90 days after such offer is made by the owner, and the guidelines rate applicable shall be no greater than the rate in effect on the commencement date of the lease for which a timely offer should have been made.

A close read of this indicates that LLs have to issue what the tenant wants, either a lease with the correct commencement date or a lease commencing no less than 90 days after an offer is made and that in either case, the guideline rate is the one in effect had a timely offer been made.

[kellbell5]

Oh man, I'm going through something similar (last lease ended Dec 21, renewal offered for Jan 22 included errors on the increase amounts, when we pointed this out to management, they agreed there was an error, said they'd send over a corrected lease, and then never did. Fast forward, new management finally sent a renewal lease for Jan with the 23/24 rates).

My management has just been flat out refusing to honor the correct 21/22 increase, even when I pointed out the language in Fact Sheet 4. I submitted an HCR complaint, but am stressed I won't have any progress with them before the 60 day response deadline is up. I was worried I was maybe somehow misinterpreting the example they gave, but seeing now that the language is literally on the lease they sent me has me feeling reassured.

[TenantNet]

Don't worry about the 60 day response. You won't get kicked out if you go beyond the 60 days.

That you have a case pending and other documentation shows your intent to renew. Has LL taken you to court? Even if he did, you have a case pending with DHCR. In some ways it's better if the LL plays these games as the rent doesn't go up until you have a lease at the correct amounts.

Just make sure you do everything in writing and by certified mail.

[kellbell5]

Right now we're still in the 60 day response zone, so LL hasn't started a court case.

And yes, I have e-mail communication from both 2021 when our lease expired, and from now for the renewal they sent me, plus a certified letter from both 2021 and now in 2023, and I recorded the one phone call I made when I wasn't having luck receiving a response from any of the written attempts.

Good point that the longer they take to send a lease, the longer we're at the same rate.

[TenantNet]

Just FYI, let's finish this up, but in the future, please start your own thread (this one is for nycman).

So as of now there would be no reason for the LL to do anything. Read the back of the RTP-8 form. Assuming the LL give you an offer within 90-150 days before a lease expires, then you are supposed top respond within 60 days. But what happens if you don't?

You are not kicked out (the LL would have to go to court). Assuming you have a good reason for not responding, the court can either tell the LL to fix the initial offer, or instruct you to sign it (which you can do under protest). But here you've done that already when you filed with DHCR. It's our understanding that the tenant gets to pick the forum, in this case you filed with DHCR. The court should (in our opinion) defer to DHCR.

More over, if the lease expires and you pay the next month's rent, a) the rent doesn't go up at all as there is no lease, and b) you would become a month-to-month tenant (with RS rights). If the LL rejects the rent, then something may be up. But that's down the road.

You recorded a phone call. That is not illegal as NY is a one-party consent state (and you consented). However getting that recording into court or with DHCR as evidence might be more complicated. The way I would deal with that is after the phone call, send a certified letter to the LL memorializing all the points discussed in the phone call. That, in our opinion, would be admissible. Of course the LL could deny that, but you have the call.

You could also send a letter to to LL memorializing all the emails, mail and phone discussions detailing a) the law and b) their refusal to go along with it. In that I would let them know you have filed with DHCR (give them the docket number) but let them get the info from DHCR.

Bottom line, let's say you do nothing during the 60 day period, over the years I have seen many cases where the courts will not evict a tenant over that, but give them time to accept the offer, or to continue the case with DHCR. The court might instruct a tenant to pay the increase pending the outcome of the case, but you're not there yet.

Settle back.

[kellbell5]

Thanks for all your help! Didn't mean to overtake the thread, mostly just wanted to commiserate with nycman for being in the same position!

[TenantNet]

That's OK, you didn't "take over," but there are times when the focus of a question can be lost with new people and new situations. In some cases people just hit the Reply button on a thread that is years old. Actually that is when we have to investigate to see if it's spam from some foreign country.

[nycman]

Before we close this, I should update that I sent the LL a note with the R&R language and was able to get a renewal lease at the correct, legal rent. Long story short: LLs cannot time renewal offers so that they get favorable increase rates.

[TenantNet]

Tell that to my LL. They want to backdate a lease offer to an earlier year. As I see it, reading RTP-8, if a LL fails to offer a lease, when they do eventually, then the tenant has the option of taking the current RGB percentages increases, or that percentages that were in effect at the time the lease should have been offered.

However, AFAIK, the term, the beginning and ending dates, must be prospective. I'm still looking for cases on this, but I've heard it time and time again from tenant attorneys, that the lease must be prospective as to the dates.

For example, today is Nov. 4th. 90 days would be February 4th, so any new lease renewal would commence on March 1st. BUT, the percentages have to be either the current rates, or the rates that were in effect when the lease should have been offered.