DHCR Nightmares

PAR Decision Tosses Out Need to Register

In a recent administrative appeal decision, the state Division of Housing and Community Renewal awarded a tenant $22,413 in a fair-market-rent appeal. But DHCR denied the tenant’s demand that the landlord freeze the rent until he had served her with a copy of an initial registration for the apartment, as required by law.Both the landlord and the tenant filed petitions for administrative review (PARs) against the Rent Administrator’s order in the case, issued in 1995. While the appeal decision found partially in the tenant’s favor, the Commissioner also found that, as the tenant had won the right to a fair-market-rent appeal because the landlord had never served her an initial registration, there was no need for the landlord to now serve her with the initial registration and therefore no need to freeze the rent.

The stabilization law and code require two acts for a registration to be valid: A properly completed form must be both filed with the agency and served on the tenant. While annual registrations may be either sent to the tenant by regular mail or given to them in person, the initial registration must be sent by certified mail. The law is also unequivocal that a landlord is not entitled to any rent increases if one or more complete registrations are missing.

DHCR has been anxious to carve out exceptions to the registration requirements since the state took over rent regulations in 1984. Their biggest gain in this regard was the registration amnesty provisions of the Rent Regulation Reform Act of 1993, and they have been drilling loopholes for landlords ever since. Angel & 430 Realty Co.: Adm. Rev. Dckt No. JF 410168-RO/JF 410161-RT (6/14/96)

DHCR Waives Non-Waiver

The DHCR has issued a rent administrator’s order closing a tenant’s overcharge case solely on the strength of an agreement letter that the landlord pressured the tenant to sign. In the letter, the tenant agreed to move, accept $2,000, and be forgiven unpaid back rent. He also agreed to drop his overcharge proceeding at DHCR.

The agreement, made in the landlord’s office in 1987, was then submitted to DHCR by the landlord, and the tenant’s longstanding overcharge complaint was terminated in 1996 without any finding of overcharge or setting of the legal rent.

The rent-stabilization code states that any “agreement by the tenant to waive the benefits of the RSL — is void,” except in narrow circumstances where an agreement is reached “with the [contemporaneous] approval of DHCR, or a court — where the tenant is represented by counsel.” In this case, neither DHCR or a court was involved in the 1987 agreement, and the tenant had no attorney. Additionally, the tenant never sent a letter of intent to withdraw to the agency, nor would he have sent one, because he wanted to maintain the complaint. The message from DHCR to landlords here is that it will approve any waiver landlords can force tenants to sign, despite the no-waiver provision in the code. Haggard: RA Order No. ZJG 410013-RP (4/23/96)

Overcharge-Complaint Tip

DHCR is doing its best to make tenants think that they can’t go back more than four years in challenging overcharges. (This may actually mean up to five years, because the law says you can go back four years prior to the most recent registration. Because the most recent registration might have been almost a year ago, four years before that could almost five years ago.) Two DHCR policies are clearly aimed at this goal:

1. The new, long overcharge-complaint form (RA-89 [4/96]) specifically warns the tenant not to list or submit leases or proofs of rent payments for more than the last five years. The form, in sections 19 and 20, only provides room for five years of information.

Ostensibly, this instruction is based on the four-year statute of limitations. However, it does not take into consideration that there may be gaps in an apartment’s registration that allow the tenant to go back much more than four years. To avoid this landmine, ignore DHCR’s instructions and submit lease and rent-payment information going back to the beginning of your tenancy, and assert that this information is relevant if there are gaps in the registration.

2. In another shifty move, DHCR only sends five years of rent and registration information to tenants who order printouts of their registration records. Tenants who are unaware of their right to receive rental information going back to the beginning of registration in 1984 accept the DHCR partial printout, and end up shortchanged on the data they need to determine if their landlord has fully registered their apartment. The best way to overcome this is to avoid ordering rent histories by phone or through the FOIL form. Instead, go to a Borough Rent Office with your lease and ask for the “Apartment Detail” printout, “from 1984 to date.”