DHCR Decisions
Docket No. CC 220222-RT
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
GERTZ PLAZA
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
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IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: CC 220222-RT
DISTRICT RENT
ADMINISTRATOR'S DOCKET
Francisco & Luz Aviles NO.: BI 220046-OI
Premises: 214 54th St.,
Apt. 2R, Bklyn.
New York
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named tenants filed a timely petition for
administrative review of an order issued concerning the housing
accommodations described above.
The Commissioner has reviewed all the evidence in the record
and has carefully considered that portion of the record relevant to
the issues raised by the petition.
The owner commenced these proceedings by submitting before the
Administrator an Application for Rent Increase of $42.50 per month,
based on the owner's extensive renovations to the tenant's
bathroom.
The Administrator approved the owner's Application, issuing an
Order increasing the tenant's rent by $42.50 per month in
consideration of the expenditures the owner had made in the repairs
to the tenant's bathroom.
In their appeal the tenants contend that the owner began
collecting an additional $42.50 per month in rent on March 1, 1987,
approximately 6 weeks before the owner filed its Application with
the Administrator and 11 months before the above-captioned Order
authorizing a rent increase was issued by the Administrator.
The tenants go on to state their apparent belief that the owner
will use the Administrator's Order to collect an additional $42.50
per month in rent from them.
The Commissioner is of the opinion that this petition should be
Docket No. CC 220222-RT
denied.
The tenants have not alleged any error of law or fact by the
Administrator in the issuance of the Order below. The substance of
tenants' appeal concerns the timing of the rent increase. An
examination of the record reveals that the owner answered the
tenants' appeal stating inter alia that it raised the rent "only
when authorized."
9 NYCRR Section 2202.4 (Section 2202.4 of the Rent and Eviction
Regulations) states that the Administrator may grant a rent
increase when "the landlord and tenant... agree to" a change in
services. In the instant case, the tenants are not denying that
they assented to the owner's Application nor are they denying that
the repairs to the bathroom took place or that the repairs
represent a benefit to both the tenants and the owner.
The record shows that the rent increase ordered by the
Administrator was prospective only. If the landlord collected the
increase before it was authorized that constituted an overcharge
for which the tenant's remedy would have been in the courts. (But
it should be noted that a tenant's right to recover an overcharge
under the Rent and Eviction Regulations is generally limited to one
occurring in the last two years.) The increase authorized was in
the legal rent. If the landlord has collected that increase in
addition to an illegal increase that was already collected then
there has been an overcharge for which the tenant's remedy is in
the courts.
THEREFORE, in accordance with the provisions of the Rent and
Eviction Regulations, it is
ORDERED, that this petition for administratife review be, and
the same hereby is, denied, and, that the order of the Rent
Administrator be and the same hereby is, affirmed.
ISSUED:
Joseph A. D'Agosta
Acting Deputy Commissioner
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