Posted by richard on July 09, 1999 at 12:27:28:
In Reply to: Re: Appellate Term Rejects common sense in Overcharges posted by Anna on July 09, 1999 at 09:42:15:
: There are also summaries of two Overcharge decisions: one about first dereg rent and the other about WHEN the clock starts on an O/C case due to failure to file DHCR registrations. Decisions start on Page 29, column 1 per the LJX version of the article.
: Waiting for the analysis on Tenant.Net....
My take is that in Murray v Morrison if you are in a non-payment action and the apartment is not registered
then "Smitten" does not apply, and the Landlord must ask DHCR for a legal rent to be estabilshed before you
can figgure out if there is any rent overcharge. Now that does leave the door open to a holdover where the
tenant did nothing wrong and contined to pay rent then discovered the apartment was not registered and then
"Smitten" would apply.
In Bragston...they are really being strict about the 4 year rule...
4 years from the time the registration should have been filed period.
BUT wait a minute doesnt the registration have to be filed within 90 days of a tenancy?
So does that mean tenants now have 4 years plus 90 days to file a rent overcharge?
The same bench also decided two other cases from Brooklyn last week
concerning rent overpayment claims and a landlord's failure to file in a timely
manner a required rent registration statement.
In Murray v. Morrison, the court ruled that where there had been no
initial registration filed, the legal regulated rent was not the last rent-controlled
rent, as had been ruled by the Housing Court below, but that a fair market rent
for the apartment had to be established in a fair market rent appeal.
The court sustained the dismissal of the landlord's nonpayment
proceeding with leave to begin a new one based upon the establishment of a
legal regulated rent.
In the third case, Bragston Realty Corp. v. Dixon, the Appellate Term
stated that a tenant's rent overcharge claim does not occur when a missing rent
registration statement is filed late; rather, the overcharge occurs when the
registration should have been filed. Thus, if an overcharge claim is not filed
within four years of when the registration should have been filed, the tenant's
claim is time-barred.
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