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LL DENIES RS

NYC Rent Regulation: Rent Control/Rent Stabilized, DHCR Practice/Procedures

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LL DENIES RS

Postby Cazmia » Sun Apr 27, 2014 2:05 pm

If a 5 unit building was converted in 1955 to a 6 unit building, would it be considered rent stabilized? Even though my building has never been filed as a 6 unit, there have always been 6 units being rented out according to the orginal LL who rented me my unit in 2007. Now, my newest LL is trying to evict me, stating on the petition that it is not RS because it was not occupied between 1968 and 1975. How would he know since he just bought the building, and since I have tried to no avail to find a record of who lived in that 6th unit all those years ago...?

Since it was never filed, there's no rental record. Another tenant has given me a DHCR rent overcharge form to fill out, because the LL is also trying to raise my rent from **** to **** dollars..but can DHCR even help me if the LL denies RS?

Does a building that may have been converted in 1955 and still has 6 units considered RS, even if illegally so?
My lease is not an RTP-8 but it's been common knowledge that all the tenants were lead into believing they rented a RS unit.

Now, there are only 3 tenants left who haven't been evicted and we need to say something to prove our RS status. Added to the situation is that I am not of African descent and LL has expressed that he prefers to rent to his own kind, because he knows them to be trustworthy people who pay their rent.
I have never been late with my rent and I (even HE) did not choose what race he would be before he was born
He says he has African people waiting for our apartments and we are holding up the process...? I work full time to pay his rent, and have no place to go and no money to get there..85 percent of my paycheck goes to him every month

This is the 2nd time in 6 months he's had me in court I could really use some advise
Last edited by Cazmia on Tue Jul 14, 2015 10:37 pm, edited 1 time in total.
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Re: LL DENIES RS

Postby TenantNet » Sun Apr 27, 2014 3:34 pm

I moved this to the RS Forum.

I've seen cases on this sort of thing before, but ti's been a while and I can't recall the outcome.

In some instances if the building was six units and converted to five units, the units might still be under RS depending on when the conversion took place. I think that if a bldg is 6 units now (even if more recent), it should be under RS no matter what. But I can't cite case law on that.

But here you had five units and is now six, albeit quite some time ago. If it was converted legally, the Dept. of Buildings should have a record and you can get that.

One thing for certain is that some prefer Housing Court to DHCR to make a decision. But that's not a science. That would depend on the LL taking you to court. If you file with DHCR, an overcharge would depend on the stabilization jurisdiction, and DHCR should decide that. I would instead look at a complaint of the LL refusing to give you a RS lease instead of an overcharge.

If all three remaining tenants are in the same boat, you might consider going together and consulting with a tenant attorney, and get more accurate advice than you can get here.

As for your ethnicity, this might fall under the Federal Fair Housing Laws, although it would be the reverse of what normally be expected. For example, see http://www.lawfoundation.org/repository/Race.pdf (page 2). For discrimination I would speak with a Civil Rights atty, not necessarily a housing attorney (or both would be better).
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Re: LL DENIES RS

Postby Cazmia » Sun Apr 27, 2014 5:04 pm

Thank you,

I was also wondering if this LL can bring a case against us being that he does not have the building registered with HPD. He states on every petition he gives me that he is and it's been over a year and he still hasn't registered.

I just wish I could figure out the reason why. A clause at HPD says he cannot bring a non payment case against me unless the building is registered, but does that hold for all sors of court actions, besides non payment?
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Re: LL DENIES RS

Postby TenantNet » Sun Apr 27, 2014 6:29 pm

The LL can bring any case he wants; the question is will he prevail?

As part of bringing a case, the LL must state in the papers that the unit is rent stabilized. I believe that failure to make that statement is a jurisdictional defect requiring the case to be dismissed.

You would put that in your defense. If you have an attorney (or you can do it yourself) you can make a motion at the court's Resolution Part asking the court to dismiss the case for that reason. Of course the LL will claim it's not RS and the statement need not be made.

If, by that time, you have filed with DHCR, you can include in your defense that DHCR has jurisdiction of the issue and the court should wait until DHCR decides. Some judges will do that. And of course, the wisdom to file with DHCR instead of the courts can be debated. Some tenant lawyers will say not to trust DHCR.

You said "registered with HPD" - well that's a different matter. Being registered with DHCR is a RS issue. However all units in buildings with three or more units need to be registered with HPD. That is not a RS issue, and that can also be put in as a motion to dismiss early on. Check with the HPD web site to see if he's registered with them. https://webapps.hpdnyc.org/HpdOnline/Pr ... dress.aspx
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Re: LL DENIES RS

Postby Jezebel » Sun Apr 27, 2014 11:35 pm

Another option (apart from DHCR or Housing Court) would be for you and your neighbors to sue the LL for protection under the law as de facto rent stabilized tenants. Most likely you would do so in Supreme Court.

There are indeed apartments and even entire buildings that have never been registered as rent stabilized but that definitely meet the requirements. If that is the case with your apartment (and those of your neighbors) the LL is not going to recognize the status of the units without a fight. You will definitely need a good tenant lawyer for this one.

If I were you (and I was once in a situation with some overlapping issues) I would get your neighbors on board ASAP, and set up some consultations with experienced tenant lawyers -- I can't stress this enough -- you are going to need a good lawyer, especially if there have already been evictions. And while it sounds like hiring a lawyer will be difficult financially, it will be considerably easier to do with your neighbors.

I would also separately start doing research into your building's history and try to get in touch with any previous tenants you can find. Sworn statements from previous tenants will help bolster your case -- and since you're looking for people that go back this many years, much of your research will necessarily be offline, e.g., reverse look-up white-pages by year would be a great place to start.
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Re: LL DENIES RS

Postby TenantNet » Mon Apr 28, 2014 1:36 am

Jezebel is correct a to Supreme Court being a third option. Yes, it would be a bit expensive, but it is also a way to avoid the Housing Court blacklist (if that is an issue of concern).

Jez is also correct about getting research on the building from many sources, including former tenants. For example, if the units are wired separately for utilities, phone and cable, then companies like Con Ed would have historic accounts for those units. It is possible to set up subpoenas for that information, but do so before you get dragged into court.
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Re: LL DENIES RS

Postby Cranky Tenant » Mon Apr 28, 2014 2:19 am

Cazmia wrote:Does a building that may have been converted in 1955 and still has 6 units considered RS, even if illegally so?
My lease is not an RTP-8 but it's been common knowledge that all the tenants were lead into believing they rented a RS unit.


If I remember correctly, Rent Stabilization didn't come about until around 1971. As Rent Controlled apartment became vacant landlords were allowed to raise the rent to whatever the market would bear and then all increases were subject to Rent Stabilization Guidelines. So if the apartment became vacant in 1955 and was later occupied in 1975, and the building had 6 units at the time, it certainly seems like it should fall under RS, unless it's exempt for some reason.

Do you happen to know how your apartment was created? Was it a larger apartment that was split in two or possibly an illegal conversion? Back when landlords were splitting regulated apartments I believe there was a specific guideline for the amount they could charge for each apartment.

Have you searched the DOB and ACRIS databases? Maybe those would help shed some light on your building's history.
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Re: LL DENIES RS

Postby TenantNet » Mon Apr 28, 2014 2:39 am

Cranky, Rent Stab first came about in 1968, although RS in the form most of us know it came about in 1974 under the Emergency Tenant Protection Act of that year.

As for guidelines when splitting a unit, I've never heard of anything like that.

What the tenant here is concerned with is RS jurisdiction.
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Re: LL DENIES RS

Postby Cazmia » Wed May 28, 2014 11:21 am

Hi, I did some research and according to the RGB, the Tenants Act only covered Nassau, Suffolk and Westchester. I also went to the Deptartment of Taxation to which my landlord pays his property taxes to and there is a docketed record that states 6 residential units.

His deed might say 5 units and HPD might say 5 units, but the dept of finance has records as far back as 2005 stating 6 residential units. Since he receives his property assessments and tax bills from this government agency I know he is aware of the building's status and using the fact that no one ever filed the unit as rent stabilized with the DHCR to his advantage.

But..Just because none of the previous owners filed with DHCR as they should have and it's not on the stabilized buildings list, I don't think that should get him off the hook.

The fact remains that:

1. The building was built before 1974
2. My rent is below $2,500
3. It is not a co-op or condo
4. It is a 6 unit building

RGB states that is the rule of thumb for rent stabilization and that all buildings may not be included on the list, only ones that were properly reported. It makes me wonder how important trying to unearth records that are over 4o years old are.

When it all comes down to it, if you put 2 buildings beside each other that meet all the requirements of rent stabilization identically, but one is proven to have been a certain way since 1971 and the other, exactly the same, does not have traceable records going back that far, it shouldn't make a difference as we are living in the present.

That is just my personal feeling on the situation. I would like to ask housing court to protect my RS rights, but I don't know exactly what I am asking the court for.

Would I go after a court order of some sort stating that my RS rights must be respected by the LL? I don't want to go to DHCR because I've heard that could take YEARS to sort out..but even though I have read that you can use the Housing Courts instead, there isn't anything telling me HOW to use the Housing Courts to do that..

Is there a form I should request or do I just bring it up before the judge?

Thanks so much for your help! Still doing my own research.
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Re: LL DENIES RS

Postby TenantNet » Wed May 28, 2014 12:26 pm

Remember, it is the apartments that are RS (or not), not the buildings.

I don't know what you mean by "Tenants Act." There is the 1974 Emergency Tenants Protection Act (ETPA), maybe you mean that. But that also covered NYC.

Any information with the Tax Dept is good evidence, but it might be considered only part of the mix by DHCR (which often likes to overlook things like that).

Nevertheless, I agree with your conclusion. But something like this might not be considered by Housing Court (which is really non-payments and holdovers) unless you have a good attorney. You can go to DHCR or Supreme Court seeking a Declaratory Ruling.

If you want to pursue this in this fashion, I would suggest getting a consult from a tenant attorney.
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Re: LL DENIES RS

Postby Cazmia » Thu May 29, 2014 8:26 am

Thank you so much. The advice is appreciated more than you know. I'm also still looking into what was said earlier about "de facto rent stabilization". Often, it's Tenant Net that gives me direction when I'm starting at zero, and I've come very far..
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Re: LL DENIES RS

Postby Cazmia » Sun Jun 01, 2014 2:45 pm

Surprisingly, I made contact with a very nice representative at the NYSHCR. I requested my rental history, but, just as I had thought, there wasn't one due to the fact that the building had never been properly registered. I begged the rep for something, anything, dating as far back as 1924 when the building was built, but she said that no registration with DHCR meant no rental history.

She did, however, tell me where to go at the nyshcr website to request something called an "administrative determination" which essentially is asking DHCR to step in where they have not had jurisdiction before.

I also asked a legal counselor at the Housing Courts about a declaratory ruling (or if I could even start my own case requesting an injunction to cover my RS rights) but I find the counselors at the Housing Courts to be..not so helpful. I was told that a judge will probably not entertain a declaratory ruling (even though I was free to ask for one), because the courts basically handle "short-order proceedings"--There are so many people going to trial everyday that the Housing Court's system operates almost as a fast food window for decisions and does not wish to pass judgements on involving and complicated issues..(sigh).

I asked if the Housing Courts allow for starting injunction cases and she refused to give me an answer on that, even after being asked multiple times. I read that an injunction doesn't ask for damages or order the defendant to do anything, that it would just outline my rights if they were not completely clear.

This meant, to me, that I could ask for an injunction requesting that my rent stabilization rights be asserted, so that if he brought me to court again implying that I wasn't rent stabilized, he could be held in contempt of court. The counselor joked with me about "using big lawyer words" and laughed and said that wasn't what an injunction was for.

It feels very demeaning when you're in the position of defending yourself in any venue and those who can't understand the feeling of powerlessness are condescending.

At any rate, I feel my landlord has been shown that all tenants are not unintelligent and uneducated people who would give up their home out of fear, laziness or lack of knowledge, as he probably believed. I observed him arguing with his lawyer, who has requested that the current case he has against me and my family be adjourned. The landlord's lawyer yelled back at him rather loudly and even the court officer winced as the courtroom doors opened and closed, because the ruckus was audible from the hallway.

That gives me an inkling that I just might have a case, here. =)

He has gone far to claim that my unit is not subject to RS because it was abandoned and not occupied between 1969-1974. His OWN lawyer pulled me aside and said, "That burden of proof is on HIM, not you"! At any rate, I would still like to know where I can go to find out if this is or isn't true. I brought up mortgages and deeds between those years at ACRIS and showed them to the counselor, but she said even though ownership was apparent, that doesn't mean the building was occupied, that the owner could have been waiting on renting the units due to repairs that needed to be made.

Well, how could one possibly prove or disprove that? It all seems ridiculous and far-fetched to me. Also, is it true that the burden of this claim is on the landlord? Should I believe what HIS lawyer told me, or could it be some sort of trick to throw me off my quest to prove RS? I get the feeling that his own lawyer doesn't like him, and the lawyer says he'll probably be out next month the day of the case, and adjourn again...??

I am trying to get the tenant above me to sign and notify a letter to the DHCR with me, to start this administrative determination proceeding. That was the one gift I was given from DHCR and I will use it...I don't know if our 2 units qualify as a "tenant's organization" but I plan to compose the letter from the both of us as such. If he doesn't go in with me, then I will make this appeal alone...

Just an update..
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Re: LL DENIES RS

Postby Cazmia » Fri Jun 06, 2014 9:00 pm

Got the tenant above me...and the tenant below me involved. I think we have an official tenant's organization. This Tuesday the 2 will go to court to fight a Holdover. They will ask a judge why heir RS rights are being challenged. I am taking a day off and I will be there to testify..
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Re: LL DENIES RS

Postby TenantNet » Sat Jun 07, 2014 11:12 am

An Administrative Determination is asking DHCR to declare the unit to be subject to rent stab.

A Declaratory Ruling would be a similar device, but I believe that Housing Court does not have the power to issue one (Supreme Court would).

However I believe that Housing Court can decide that the unit is subject to RS (not a declaratory ruling per se). That would be a defense in a non-pay or holdover, or raised in a motion. You can't start your own case in Housing Court for that kind of relief (i.e., injunctive relief). But getting the court to dismiss a LLs case because the unit is RS might be the same thing for what you are seeking.

Some of the clerks at Housing Court can be as obnoxious as hell, but they are correct to caution against using "big lawyer words" without understanding what they really mean. We've all been guilty of that.

DHCR took over the system in 1984, so they have records back until then. Before that, apartments had "Rent Control Cards" going back to the 1940's. DHCR should have those, but you might have to FOIL them.

HPD would have icards. Go to https://hpdonline.hpdnyc.org/HPDonline/ ... dress.aspx
Then enter the address, at the bottom-left see the link to I-card images.

DOB will have records of the Cert. of Occupancy, if any, and the Dept of Finance has the ACRIS system for copies of deeds and mortgages.

Here's a thought. Do this first on this forum, then on the website (the home page search function), and then google ... enter something like "rent stabilization five units" or variations on that. Look for cases that have decisions on that point. Look for Khalil v. Rivera on this site. The best cases are Court of Appeals, Appellate Term and Appellate Division. If you are in Manhattan, look for 1st Dept. cases, If in Queens, look for 2nd Dept. cases.

Check the DHCR Operational Bulletins. http://www.nyshcr.org/Rent/OperationalB ... rao952.pdf and http://www.nyshcr.org/Rent/FactSheets/orafac38.htm

Here's some cases...
viewtopic.php?f=2&t=1918
http://www.leagle.com/decision/1992824155Misc2d669_1712
http://www.leagle.com/decision/19942061 ... 0v.%20DHCR

While I would not trust the LL's attorney who might be trying to lull you into false security (a favorite tactic), still I would think the burden is on the party making the claim (the LL).

And yes, 2-3 tenants does make a tenants association.


I've been told there's a discussion of that in one of them where a reduction of units after 1974 would not take the other units out of RS. (an exception might be a substantial rehabilitation.
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Re: LL DENIES RS

Postby Cazmia » Sun Jun 08, 2014 3:55 pm

Having the Housing Court decide that our apartments are covered by RS would definitely suffice in this situation. Since I am appearing for a nonpayment case on another date with a different judge as the other 2 tenants who are fighting the Holdover, would this mean a determination of RS have to be obtained 3 times, for each individual case?

I've looked at a few of the links you provided and have printed out a few cases for reference.

I can't seem to find examples/ drafts of what a letter requesting an administrative determination would look like anywhere on the web. The instructions from DHCR simply ask us to provide proof of our claims and our addresses and units, but should a lawyer be sending this letter to DHCR or do they accept "lamen" applications?

I also wonder if we would apply separately, or send our leases and one single request letter as a tenant's organization.
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