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Rent Order says I'm stabilized! Next Steps

NYC Rent Regulation: Rent Control/Rent Stabilized, DHCR Practice/Procedures

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Re: Rent Order says I'm stabilized! Next Steps

Postby TenantNet » Sat Jul 18, 2020 12:57 pm

I haven't read through all the previous posts, so I'm really not up on this case. Did DHCR just issue a decision? If so, what is the date of the decision? Also, please send us a copy of the order.

Congrats for his losing the PAR. Look further up where I quite section 2529.12 of the RSC. That says that any part of the original order was stayed when the LL filed a PAR ... until the PAR is decided, so now nothing is frozen. If it were me, I would start withholding the retroactive part as specified in 2529.12 (unless you're going for a money judgement).

Having said that, nothing is over until it's over. So whatever you get, put it in a bank and keep it safe in escrow, just in case.

As for an Article 78, he would file that against DHCR, not you. You would have to discover if it's been filed and then become a party to the proceeding. In some cases LLs will not object, and neither will DHCR, but in other cases you will need to make a motion to the court seeking to become a party. The details as to how to do that are complicated (especially now with all the COVID craziness) and you probably should get some legal advice on A78s, or even get someone to do it for you, that is unless you have the ability to do it yourself. A few do, but not many.

In the short run you will need to contact DHCR's Legal Dept. Ask for the "attorney of the day" to see if they have been served with the LLs A78, and the name of the attorney to whom it has been assigned.

To be honest, unless you have some faith in DHCR (and I don't), and it depends on the size of the overcharge, I would not file an overcharge. Didn't they AD decision already say what you are owed? Can you take it off your rent going forward. Again, I don't know all the details of this case and making a general statement.

So first, I would get your monthly rents in order - reduce it to the amount DHCR specified. If the LL has not given you a lease, then there will be no increases as per a regular lease issue. I would not even pressure him for a lease. As long as he doesn't give you one, your rent is frozen.

Then I would figure out what you have overpaid since the effective date of the AD order. Did it specify treble damages or just interest? (BTW, that might be a reason to file an overcharge as DHCR should award treble or interest).

For any rent, you should send certified or by certificate of mailing. If they don't cash it, that's his problem. If you sent it, that is what matters. Does he enter the amounts and any payment into a monthly statement? or ledger?

And with any check or money order, ALWAYS write in the memo field what month it is for. LLs often try to take your current payment and claim it's for some month from years ago. It's called "earmarking" and courts often uphold this if you specify the month. You can also specify on the check "see attached letter dated July 18, 2020" or whatever. Then attach a letter explaining how much you're deducting from the current legal rent and why, pursuant to the AD order dated ___ and PAR dated ____. Just document everything.
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Re: Rent Order says I'm stabilized! Next Steps

Postby flybyme03 » Fri Aug 21, 2020 1:33 pm

NEW UPDATE:
My Landlord filed a PAR and was recently denied. In the ruling the deputy commissioner found that the original ruling of the administrative determination was correct in that my landlord illegally deregulated my apartment through undocumented IAI costs. They were able to look back before 4 (or 6 now) years because it was an AD case, not an overchage case and the landlord's argument was therefor not valid. One MAJOR finding was that the landlord never filed a deregulation document with DHCR. He kept supplying it as evidence and I kept noting that it did not contain a second page that should have been signed and dated. DHCR agreed and said they had several notices of apartments legally deregulated by my landlord at this time but specifically did NOT have notice of my apartment at all. So one of the major documents he argued with, he lied about filing.

I had prepared and Immediately filed a Rent Overcharge case with 12 years of my check copies and electronic payments. The order was received and give a docket for review. I am currently paying the rent issued in the rent order and have not paid any increases becasue i still have not been given a lease.

Now the landlord has officially filed and article 78 case, which I learned through here is against DHCR rather than me personally. I have not responded and not exactly sure if I need to do anything as I dont have anything to add.

I now guess I sit back and wait for Article 78 to go through, and I guess there is an appeal with that too. My main issue now is regarding the overcharge. I waited to file that portion while the AD case and the PAR of that case were determined, so I'm not sure where that leaves me with paying future rent. The AD and PAR both state that I was overcharged, and I guess I have to also wait for the RO case to officially calculate how much that would be. I mentioned fraud for other reasons but also that the Deputy Commisioner said LL lied about filing any paperwork with the agency specifically to my apartment even though he kept saying he did and providing an unsigned and dated version.

I know thre is no way my landlord will pay me anything when this is over. I also know he has pretty much a 0 chance of winning any of these proceedings. I can afford to pay my rent but I'm wondering when I stop paying and start deducting that from what is owed. I think I have to wait until the Article 78 goes through and then I have to go file with the court paperwork to show why I'm not paying rent. Im wondering if I also have to wait on the overcharge case to go through as well? Anyway if anyone knows please let me know so I dont miss a deadline or give my landlord time to do something else shady while this is going on
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Re: Rent Order says I'm stabilized! Next Steps

Postby TenantNet » Fri Aug 21, 2020 2:41 pm

Can you send us a copy of the PAR decision. Scan it in to a PDF format (not jpg) and attach it to a private message. Or mail it to tenant@tenant.net.

To be honest, this thread now is two pages of very long posts, and I can't go back and re-read all the posts every time there's an update. So always, please, provide a summary of how this all unfolded (which your sort of did).

Article 78 cases, in Supreme Court, is when the LL sues DHCR claiming the decision was wrong as it was "arbitrary, capricious or an abuse of discretion." See https://www.lawny.org/node/62/article-7 ... y-decision for an overview, but just Google "New York Article 78" for many other pages.

So now, the LL sues DHCR. You are NOT a party, but you should be a party to this suit. Contact the DHCR attorney that is handling the case (call DHCR Legal Department today if you can). They will not oppose your becoming a party, but the LL might. Usually judges will allow it, but you will have to make a motion to become a party, and probably include your opposition papers. You want to be in a position to add pressure to DHCR and to the judge. In a private message, send us the docket number (and caption and county) of the A78 case.

Once this happens the LL will want DHCR to remand the case for further action. DO NOT LET THIS HAPPEN as most of the time DHCR will change it's position.

All this is easier if you have a lawyer that knows how this all works.

Yes, after an A78, there can be appeals to the Appellate Division and even the Court of Appeals.

I can't say but try to find out of the Regina case impacts any overcharges in your case. It might depend on when you filed your case. Google "DHCR Regina."

Legally, as far as I know, with the PAR in your favor, there is no legal prohibition to your deducting the rent as detailed in the order. The would be no "stay," however there was a partial stay during the pendency of the PAR. That is now lifted. However, you do not want to be in a position of taking the money, spending it and not having it if the decision is reversed. So be careful.

I would also review the situation with the overcharge case as it essentially allows the LL to relitigate the AD matter. DHCR should be smart enough to see through that, but the aren't usually. You might consider withdrawing the overcharge if it could backfire. I would consult with an attorney on that.
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