In general, tenants are better off taking their landlords directly to court for overcharges, rather than filing complaints with DHCR. This is true for several reasons: The courts often apply the law more favorably (for example, by going back more than four years in calculating overcharges), the process is faster, and the landlord has no opportunity to automatically delay payment of an overcharge by filing an appeal, as he can do at DHCR. The problems with the new form create several categories of tenants who would definitely be better off taking their landlords to court rather than filing the new form with DHCR:
tenants who think that the overcharges in their apartments go back more than five years;
tenants who have received substantial rent abatements in Housing Court and want to be credited with paying 100 percent of their rent for purposes of calculating overcharges, and
tenants who have received DHCR rent-reduction orders and dispute the agency’s new policies that reduce the value of those orders.
If you decide to file the new form and go the DHCR route, several aspects of the agency’s new form represent an unfavorable change in its policy toward tenants. Preserve your rights to challenge them by demanding in your complaint that DHCR take notice of its own records and investigate your complaint without limitation by requiring the owner to document the rent history for your apartment (questions 16 and 24).
For question 6, you are not required to notify your landlord of your complaint, and can answer N/A. For question 12, only say electricity “is” or “is not” included in your rent if you know that the landlord’s practice is legal; otherwise, put “unknown.” For question 15, when asked what category of overcharge you are complaining of, always include “other” and enter something like “the owner is charging more than the legal rent and I demand that DHCR require the owner to produce a complete explanation of the rent history for my apartment.”
Question 19 contains an unlawful limitation to your right to benefit from a complete consideration of your rent history and registration, stating that DHCR will only look at the last five years. Object to this and demand that DHCR consider the complete rent history and initial and annual registrations back to 1984.
For question 20, if you ever received a rent abatement, put the full amount of the rent, with the reduced amount in brackets, and attach an explanation.
For question 25, provide canceled checks only if you have a full set. Remember to object to having the burden of proof shifted to the tenant after so many years of established DHCR practice requiring the landlord to prove and justify the rent.
Lastly, if you need individualized help, reach out to your local tenants’ association, elected official, Met Council, or a member of the tenants’ bar.
Seth Miller is a tenant attorney in private practice