Lost Initial Overcharge Complaint, Won PAR, Now what?

[pwvjay]

Hi -- I filed an overcharge complaint against my Landlord in a couple of years ago. The previous tenant was paying about $1000 less than me. Upon filing, the landlord submitted paperwork showing that renovations cost almost $50k (for my studio apt ~400 sf) to justify his increase. The invoice/contract had many significant errors. I hired an engineer who determined the work should not have been more than $15k and he noted all the differences in the LL's proposal/contract to what was actually in the apartment.

In January 2009, the Rent Administrator determined that the LL is not required to find the lowest-priced contractor and therefore the rent increase was justified and stated that my apt was no longer rent stabilized.

I filed a PAR and the judge determined that the invoice provided by the LL had too many errors and was therefore inaccurate and thus used my engineers invoice/estimate to determine the new rent and re-stabilized the apt.

I have now not paid rent since receiving this new judgment.

Couple of q's for those who may know the answer:

- My LL is sending me rent bills indicating I am past due on payment and seems to be refusing my certified letters stating this new judgment - do I have anything to be worried about?

- Im assuming my LL will appeal this to Supreme Court.... does SC usually overthrow previous decisions?

- What are the chances that this most recent decision can be overturned?

- Do I continue to pay rent as is? Or wait until the money owed to me as per the judge's order is paid in full?

Any thoughts or advice would be greatly appreciated.

[TenantNet]

Generally, in an overcharge complaint (an in many DHCR proceedings), if you win and the LL files a PAR, then there are two dates to remember: the effective date and the decision date. The decision date is on the actual decision (from the rent administrator, commonly called the DRA decision for "District Rent Administrator").

The effective date depends on when you filed the complaint, usually the first rent payment after served on the opposing party. That should also be listed on the decision.

When the losing party files a PAR (administrative appeal), the new rent is prospective (from the decision date), by "stayed" for the retroactive portion (going back to the effective date) while the PAR is pending. Only once the PAR affirms the lower order may the tenant collect the overcharge for the time between the decision date and the effective date. All this is in RSC section 2529.12.

However, all this is not applicable in your case as you lost the DRA and won the PAR, so you were not able to pay the lower rent pending the PAR. Only when the PAR was decided could you start paying the lower amount (prospectively) and also collect the overcharge for the time since the effective date. You should also be able to collect any interest or treble damages awarded. (if they didn't give that to you, then DHCR screwed you).

So there is no stay once the PAR is decided. The actual language on stays should be on the order itself.

The LL now has 60 days to file an Article 78 in court. BE AWARE that he files it against DHCR, not you. DHCR is supposed to send you a notice, but you are not a party unless you intervene. You need to contact the attorney at DHCR and a) get a copy of the LL's court papers (they are usually good at this) and b) seek intervention, either with all parties stipulationg to your intervention, or you need to make a motion in court.

You need to be a party as you need to protect your win. DHCR represents the agency, not you. They will not represent your interests and more often than not, they will do the easiest thing, which is to allow the case remanded back to the agency "for further processing." That's code for "you lose."

Article 78's can get complicated and a book could be written, but getting some legal advice might be worthwhile. They can also be expensive, so you need to decise how you want to handle it.

But as on now -- and until any judge rules differently, the DHCR PAR decision holds. As part of a Article 78, the LL might seek to "stay" the order. That you can also fight.

Make sure everyone knows the LL's antics. He might try to take you to housing court as intimidation. Don't give in. You have a valid order. Pay the legal rent and take whatever awards to which you are entitled. Keep records and inform the LL in your letters how you are making the calculations, and invite them to offer their own calculations. (which if they do, then they are admitting to the order). If they refuse the rent, then keep it in escrow.
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Information from TenantNet is from experienced non-attorney tenant
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[TenantNet]

As long as the LL has the right to file an appeal, it is wise to keep the difference in escrow. A court could reverse it and where would you be if you had gone out and spent it? I know it's tempting, but keep it in escrow ... even if you are not legally obligated to do so.

On the forum there isn't the time or space to go into detail about how to file or respond to an Article 78. Lawyers know how to do it (and charge for the pleasure) ... and some tenants will try themselves. Some are better than others.

First step, if you get a notice from DHCR that the LL has filed an Article 78, call the DHCR attorney at the number on the form. Ask:

a) will they send you a copy of the LL's petition and brief (2 separate documents) -- in some cases they do it as an Order to Show Cause (OSC). DHCR in my experience usuall will accommodate a tenant on this.

b) will they object to your intervention. They will likely say no, that they will not object. At this time you are nota party to the court proceeding.

Remember, DHCR defends the agency, not you. Also, they are likely to agree to a court remand of the case back to DHCR for "further processing" -- meaning they will screw you. Once you intervene, you need to convince the court to a) not remand and b) affirm the DHCR decision.
_________________
The Tenant Network(tm) for Residential Tenants
Information from TenantNet is from experienced non-attorney tenant
activists and is not considered legal advice.