421a overcharge affordable/dhcr par denied

[Bigskunk911]

Hi, everyone I live in an LIHTC building that also gets 421-a. The landlord set initial legal rents according to an lihtc agreement but inflated the rents where a tenant receives a subsidy, now the lihtc agreement contains no rent stabilization clause, rents are set by AMI like those outside nyc and throughout the usa where affordable housing rents can go up by like 5-10% a year like incomes. But 421-a requires intial rents be at ami, instead landlord set rents at whatever a subsidy like cityfheps pays.

Not every subsidy will pay an increase year after year. The DHCR complaint was denied, I appealed explaning the issue, and the PAR says the 421a declaration isn't an agreement (nonsense), older 421a agreement's don't spell out the ami because they simply reference the ny 421a statue which says which geographic areas have income limits.

Not sure what to do, the overcharge is not very high maybe $4k over the past few years all together. If I have to pay a few thousand for a lawyer not worth it.

The Par says because I didn't bring up the 421a issue (this is a pre hstpa complaint), new evidence can't be sunmitted, but could their be a fraud issue since the owner is falsely claiming hfa requires and allow a higher registration, normally a landlord wouldn't register if they wouldn't have to, they because of 421a but are ignorning other parts of the agreement.

What's an usual is its an 421a affordable agreement, the LL is able to get away with overcharges because if a subsidy is paying rent for many tenants there is little incentive to complain, also when a client recertifies under lihtc the subsidy doesn't count towards the limit so there is no audit under lihtc, since 421a is lax, its unusual.

Perhaps I am not the best at writing essays and arguing my point though I try with proper grammer tools and the PAR got somewhat of the gist of my complaint.

3 questions:

1. Should I re-file the dhcr complaint with 421a info, since it wasn't raised in the original as properly documented, not the overcharge started in late 2018, not sure if I can claim a fraud exception.

2. Should I do article 78?

3. I can file a complaint against DHCR saying effective by allowing DHCR to set initial legal regulated rents higher using subsidies , its allowing discrimination inso much that security deposits and rent increases will be higher year after year if a subsidy doesn't keep up, if the subsidy is lost the higher lihtc rent will apply instead of the true base rent. I am aware ph 610 will allow subsidy allowances for financially distressed properties but as the actual rent.

Having said this I'm surprised if the right to collect a higher rent never existed before, and also the "Actual rent paid" is supposed to be tenants total payment, not out of pocket cash cost for subsidy.

I'll ask a couple lawyers but doesn't make sense to pay 3-4k or 5k and risk losing maybe do it myself article 78, or see pro-bono. The qla does have a $35 half hr consult but not sure that will do much good, talk for a half hr quote a price of a few thousand.

The additional confusion came because both the 421a and lihtc rents are the same 60% ami, so the RA got confused when I get saying lihtc rent, both 421a and lihtc use the same calculation to compute ami, although sometimes the lihtc ami levels depending on agreement and lihtc may be different, ie 80% ami.

[TenantNet]

You posted three times today, making it impossible to follow the issues. You also seem to be asking about multiple hypotheticals. See the forum rules No. 8 about multiple threads. viewtopic.php?t=4809

We locked the other two threads, but left this one open so you can combine them without hypotheticals and (please) shorter.

Just FYI, we concentrate on rent stab issues and know very little about LIHTC, so we probably are not your best source on that.

[Bigskunk911]

Hi, the subject building is subject to both rent stabilization under 421-a and also the LIHTC, but the owner registered the LIHTC rent insteaf of the 421-a rent, since LIHTC allows for additonal rent to be collected from say a section 8 voucher, this inflated rent became the legal rent.

[Bigskunk911]

To the moderator, I wanted advice on how and whether to file a reconsideration of a DHCR order but didn't want to start a new thread forum but feel it's a better place, and what to put in the reconsideration, which isn't the same as a PAR but rather reconsidering a ruling.

[TenantNet]

I don't understand what you're asking. You're tossing in a lot of stuff that make a simple answer hard to understand, much less answer.

[Bigskunk911]

Apparently, a DHCR order can be "reconsidered", which is different than filing a petition for administrative review. See this link https://hcr.ny.gov/system/files/documen ... t-91-5.pdf

[TenantNet]

Yes, you can ask DHCR to reconsider a decision, and that is separate from an Administrative Appeal (i.e., PAR).

In my experience many years ago I asked for a decision to be reconsidered because DHCR essentially made a typo. It didn't change the outcome of the decision.

DHCR allows this if they find that such order was the result of fraud, illegality or irregularity in a vital matter." Of course books have been written about those issues. You have 95 days to do this, so get working.

[Bigskunk911]

What happens if my par was denied, can it also be reconsidered? I can try to get the original decision reconsidered on those grounds that exceed the 95 days. But can a par be re-considered, and is there a form?
This isn't to be confused with an article 78. I did reach out to HPD as well, and they seemed helpful but I'm guessing because of the Ursadth law, their hands may be tied.

[TenantNet]

What happens if... can't answer hypotheticals. I need to answer posts from other tenants. This is not Urstadt. From a PAR your remedy is A78.

[Bigskunk911]

Just to clarify, once a par is issued, there is no option to have the par administrator reconsider and you're only option is an article 78?

As far as urstadt,it appears that once a rent is registered, hpd's hands maybe tied enforcing compliance if the rent was registered incorrectly but we'll see what happens.

[TenantNet]

You don't understand Urstadt. Your option is an A78 other than what is in the Policy Statement. But you knew that already.

[Bigskunk911]

I understand urstadth to mean that the city of new york can't set stricter rents than state law. With HPD, they can suspend a landlord's tax benefit if they fail to register but if the registered rent is incorrect, they don't have or seem to use enforcement power.

Since the policy statement is from 1991, it was unclear any changes since then.

[Bigskunk911]

Hi, to the moderator so as to not duplicate posts/questions, how does one do a DIY article 78?
Also, does a DHCR overcharge cover dates after the complaint was filed? I thought it may because the base date would be until now because I occupcy the same unit,but unclear.

[TenantNet]

This was sitting in our inbox, so quickly, an A78 is a legal proceeding and can be complicated both in the legal arguments and in the procedures one must follow. If you've never done on, or have no legal experience, you could be making things worse. I would consult with an attorney first. Can you do it? Yes, you have the right. Should you? That's another matter.

A DHCR order should indicate the effective date (if prospective) and any retroactive period, if, for example, if it makes a finding that the tenant was overcharged. It will say so. The last sentence makes no sense.

[Bigskunk911]

Hi, Thanks for the Response, I wonder if a reconsideration would be key. I hear the fraud exception may be a great idea but not sure how best to execute it or whether fraud/misrepresentation could allow me to file a new complaint.

My confusion is let's say at the time you made the overcharge complaint, you were being overcharged $300 a month and a few years later you are overcharged $400 (Due to flawed initial/legal rents). If you make a complaint saying you are currently being overcharged $300, does that also cover the overcharges in the future? It should, but with wording of the complaint not sure.