DHCR Trying to Gut Tenant Protections;
Outrage Slows the Tide
By Dave Powellž

On April 5 a small and little-known message went out in the New York State Register:

The state Department of Housing and Community Renewal (DHCR) announced it would amend the state’s Rent Stabilization Code, as it had hinted it would nine months earlier. On the surface the announcement seemed innocent enough. After all, the code had not been “adjusted” to match up with the major changes in the law resulting from the Rent Regulation “Reform” Act of 1997. But on the surface is exactly where the innocence of the gesture began and ended.

On further inquiry, a group of tenant attorneys discovered that the “adjustments” in question were actually 150 pages worth of major code changes. According to the group, an ad-hoc team of Legal Services lawyers, lawyers from private tenant firms and tenant advocates, the changes go way beyond the anti-tenant measures passed in 1997. The DHCR is using the’97 changes as a pretext for an attempt to regulate areas over which it has previously had no jurisdiction. A brief outline of some of the changes is listed below.

DHCR was also apparently at no loss for sleazy tactics in sneaking the measures past an unsuspecting public. As is required by both the state Rent Stabilization Code and the Administrative Procedure Act, a hearing was scheduled to solicit testimony from the over 2 million tenants who stand to be affected. But the “public” hearing, which took place at Borough of Manhattan Community College on May 25, appears to have been designed for obscurity. The DHCR made little to no attempt to alert the public of this hearing, and managed very cleverly to schedule it two days after Tenant Lobby Day and three weeks before the city Rent Guidelines Board hearing. With such short notice and ominous scheduling, tenant attendance was destined to be dismal — a fact which wasn’t lost on DHCR Executive Assistant Michael Berrios. One BMCC faculty member reports that while booking theroom at the college, Berrios let it be known that he expected the hearing to yield a “low turnout.”

Though their numbers were small, a core group of tenants and their allies showed up to register their outrage to the six-member hearing panel of DHCR officials. State Senator Tom Duane and Councilmember Stanley Michels both weighed in against the changes, as did representatives from the offices of Assemblymembers Deborah Glick and Scott Stringer, and Councilmember Christine Quinn. All the usual suspects from the world of tenant advocacy and activism blasted away, and a surprising number of BMCC faculty, staff, and students also gave tenant testimony.

But perhaps the most articulate and scathing indictment of the proposed changes came from Ralph Carbone, a 16-year employee at the agency and president of District Council 37, Local 1359, which represents DHCR workers. “The process utilized appears deliberately designed to confuse and obfuscate,” he testified. “The code as it currently exists is complicated and complex enough. The agency performed a gross disservice to the public by, in effect, attempting to bury the very pro-landlord amendments to this revised code.”

A common theme echoed in nearly all the tenant testimonies was anger over the lack of notice of the hearing and lack of details on the substance of the proposed changes. They weren’t posted on the DHCR Website until the day of the hearing, and copies were not available at the hearing (though the DHCR offered to mail them out to tenants at a later date!).

This contrasted sharply with landlord advocates, who showed up in relatively high numbers to praise the changes. An article in the May 28 New York Times quoted Joe Strasburg, president of the Rent Stabilization Association, as saying “For both owners and tenants, this codification is an extremely valuable and useful process.” The fact that the leading landlord group gave such quick approval to 150 pages of DHCR legalese feeds speculation by tenant advocates of foul play.

To many who have watched the DHCR’s “devolution” in recent years, the credit for this latest attack on tenant rights rests with one man: George Elmer Pataki.

“In the past, under the Democrats, DHCR operated as an agency that took rent regulations seriously, but tried not to enforce it so much as to drive away landlord campaign contributions,” says Met Council board member Bill Rowen, a tenant advocate and assistant to the tenant attorneys. “After Pataki became governor in 1995, the pro-business (landlord) ideology changed the landscape: DHCR was changed first in its staffing. Pro-landlord attorneys and appointees replaced pro-tenant ones. Often overlooked is that rent examiners and attorneys who served successfully in their jobs under the Democrats were removed. Only then could Pataki control the agency. Incompetence was rewarded. Lack of knowledge of the laws became a virtue, especially if you were willing to function as the Pataki people wanted you to.”

Next Steps: Tenants Must Move to Defeat Changes

Tenant attorneys will be filing lawsuits to stop the proposed DHCR changes to the Rent Stabilization Code. In the meantime, it is extremely important that tenants register their opposition with both the DHCR and the governor. Originally DHCR had scheduled to end the “public comment period” on May 30. However, during the last week of May, tenants managed to show a swell of opposition to the changes, including a phone and e-mail “blitz” of DHCR and Pataki initiated by Met Council. The public-comment period has since been extended to the first week in July. After this point the DHCR will claim to have sufficiently heard public opinion and decide on whether or not to proceed with their proposed changes. Please see the notice at right to see what you can do to stop these anti-tenant proposals from becoming permanent.

DHCR’s Proposed Changes to the Rent Stabilization Code

Overcharges and Extra Charges

DHCR will not only force through the “four-year statute of limitations” on overcharge cases (which is now the subject of pending court decisions); it is further proposing that new tenants in recently deregulated units be given only 90 days in which to file an overcharge complaint. The DHCR knows very well that it often takes years for tenants to discover such overcharges. Landlords will be able to make “surcharges” for virtually anything they want, (gas, electricity, cable and Internet installation, washing machines, etc.) without any regulation. In overcharge cases, the legal rent will no longer be determined by the rent registered with the DHCR, but by the “record” given by the landlord at the proceeding. That means whatever number the landlord can get away with lying about at the time.

Landlords will be allowed to charge as many 20% vacancy increases in a year as they can get away with. The Rent Stabilization Code currently prohibits landlords from charging more than one vacancy increase within a given RGB annual cycle (meaning that in cases where a tenant is evicted or leaves “mid-lease,” the landlord can only charge the first incoming tenant a vacancy increase, not any subsequent tenants within the same year). DHCR is proposing that there be no limit on the number of vacancy increases a landlord can collect in a one-year period. This is an open invitation for landlords to commit fraud, rent-gouge and evict tenants.

Eviction

DHCR will make it easier for tenants to be evicted for the landlord’s “personal use,” extending this to include the in-laws of landlords. “Personal use” cases (under the current definition, which includes all of a landlord’s extended “blood” relations) are already being used fraudulently, resulting in landlords not only evicting individual tenants but whole buildings.

Eviction based on “non-primary residence” will be made easier. The proposed changes suggest that a driver’s license and registration be the main indicator of a person’s primary residence (over the current larger body of evidence used such as voting records, tax records, insurance policies, time spent in the apartment, etc.). Additionally, it is proposed that legal subleases be used to indicate “non-primary residence.” Again, “non-primary residency” cases are already used as a tool of harassment by landlords looking to displace long-term tenants.

MCIs

DHCR will now require tenants to hire engineers or architects to refute a landlord’s fraudulent Major Capital Improvement charges. DHCR will require the same for tenants who try to file for decreases in rent due to violations in the apartment or building. Both of these are areas for which DHCR is responsible. DHCR is trying to wiggle out of its mission, while simultaneously giving a fair shake to only those tenants who can afford it. Landlords will be allowed to file MCI applications without providing full proof and records relating to the MCI. DHCR will no longer be required to send the full copy of the landlord’s application to affected tenants. In reality they have been neglectful on this for a long time (in violation of their own regulations).

Services/Repairs

Landlords will be able to collect rent increases even when they do not provide basic services to tenants.

Landlords will be given more leeway in fraudulently accusing tenants of denying them access to apartments in repair proceedings. This means landlords will further avoid rent reductions when they violate the law. In instances where tenants do actually succeed in getting a rent reduction in these proceedings, the landlord will no longer be required to certify maintenance of these conditions, once the rent has been “restored.”