Posted by Mark Smith on February 28, 1999 at 19:17:54:
In Reply to: Re: DHCR (OVERCHARGE QUESTION )?? posted by Screwed? on February 28, 1999 at 13:43:16:
I will address the comments and questions below, taking the comments about late registration first.
The Rent Stabilization Law (RSL) §26-517(e) states:
The failure to file a proper and timely initial or annual rent registration statement shall, until such time as such regsitration is filed, bar an owner from applying for or collecting any rent in excess of the legal regulated rent in effect on the date of the last preceding registration statement or if no such statements have been filed, the legal regulated rent in effect on the date that the housing accommodation became subject to the registration requirements of this section. The filing of a late registration shall result in the prospective elimination of such sanctions and provided that increases in the legal regulated rent were lawful except for the failure to file a timely registration, the owner, upon the service and filing of a later registration, shall not be found to have collected an overcharge at any time prior to the filing of the late registration.
Therefore, a landlord can't make overcharges legal simply by filing a late registration. In general, the only overcharges made legal by filing a late registration are those that the landlord could have collected, such as the Rent Guidelines Board annual increases, if it had filed timely registrations. If the landlord has simply out-and-out rent gouged by charging more than the correct rent, late filing won't make the late-filed rent legal, and the landlord will be subject to treble damages.
But the person who filed a rent overcharge complaint with DHCR and is now in housing court on a non-payment case may have trouble getting relief on a defense and counterclaim for overcharges. Once a complaint is filed with DHCR, housing court will generally will not take jurisdiction of the overcharge defense and counterclaim, and the tenant will have to wait and wait and wait for DHCR to decide the overcharge complaint. Therefore, if you suspect that you are being overcharged, especially if it is large overcharge, you should not file a rent overcharge complaint with DHCR. Instead, be prepared to withhold your rent and put in the rent overcharge as a defense and counterclaim in housing court.
: : The 1997 RRRA has a retroactive element called the four year rule, so if the LL files Fraudulent or
: : NO Intial rent or yearly rent doucuments and they get caught,
: : the DHCR will allow them to admend them
: : so there is NO treble damage penalty or overcharge.
: Is there any way to circumvent this? I am filing my answer to a non-payment petition and one of my many arguments is rent overcharge. LL filed NO initial rent or yearly documents and willfully overcharged. I am afraid that once he reads the answer that I give to the clerk, his lawyer will in fact RUN down to DHCR and retroactivly file. Do I have to include overcharge in my answer to the clerk, or can I raise it orally at the hearing, giving the lawyer no chance to retro-file?(sounds like a desperate and hinky ploy, I know -but what else can I do?)
: Also, I have made my overcharge complaint to DHCR, but isn't it true that they have to inform the LL to get his side of the story before rendering a judgement? What good is it to file the complaint of past overcharge if the LL can easily make it dissapear?
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