Lease renewal and preferential rent

[CatchaFire]

Hi All,

I am in a rent-stabilized apartment in New York City, paying a preferential rent. My landlord recently sent me the paperwork for a renewal lease, including form RTP-8 (http://www.nyshcr.org/forms/rent/rtp8.pdf) and a preferential rent rider.

In box 2F of the DHCR form, the legal maximum rent is entered and the box is checked indicating that a lower rent, the preferential, is to be charged. This amount is entered on line 5, and the box is checked indicating that the preferential rent rider is attached. But on line 6 (where the form says to fill out either the amount from box 2F or that from line 5), the landlord has entered the legal maximum rent. The same is true in Part B, the tenant's response. On the face of it, I'm agreeing to pay the legal maximum, even though there is, as I said, a preferential rent rider as well.

When I asked the landlord about this, he said that the DHCR form was supposed to be filled out in this way. Does anyone know if this is true? If not, will the preferential rent rider preclude any attempt by the landlord to raise the rent? I know that it's normally illegal to raise a preferential rent in the middle of a lease term, but might the landlord be able to get away with it if I've signed off on the higher rent, whether or not there's a rider? I'm particularly concerned about a provision in the rider asserting that the preferential agreement will be terminated if I pay late (or if the landlord says I've paid late). Is it possible that the landlord won't countersign and return the rider, in an attempt to stick me with the higher rent?

Any help would be appreciated. Thanks.

[TenantNet]

In box 2F of the DHCR form, the legal maximum rent is entered and the box is checked indicating that a lower rent, the preferential, is to be charged. This amount is entered on line 5, and the box is checked indicating that the preferential rent rider is attached.

From your description it seems pretty obvious that the LL intends to continue the preferential rent (PR) and the inconsistency is just a mistake. A plain reading of the form agrees with your instructions.

I would say talk to the LL, but you've already done that. Have you called DHCR? I would do that just to have done it.

I would start now with a paper trail. I would send the lease offer back to the LL (cert. mail RRR) and indicate that a) it is your intent to renew for X years, but that the offer is inconsistent and incorrectly filled out. Ask for a new renewal lease with the items properly filled out. Do not cross out what the LL has incorrectly done. That can get you into more of a quagmire.

On the rider, first, is this a new rider? Was there a similar or exact rider when you took occupancy or on any previous renewals. If the language is new, then that falls into the 'no change in terms or conditions' of the RS laws. Indeed, I would reject the new rider just on that clause alone.

Second, see DHCR Fact Sheet #40 at http://www.nyshcr.org/Rent/factsheets/orafac40.pdf - and pay attention to the part as to how the PR can be implemented: not in the middle of the lease and not if you pay late. And look carefully on the leases since you took occupancy to see if the LL did everything exactly correctly.

You can always file a complaint with DCHR on the LLs failure to offer a renewal lease. But I do not know how DHCR would treat things if the LL then says he's rescinding the current PR.

[BubbaJoe123]

"and pay attention to the part as to how the PR can be implemented: not in the middle of the lease and not if you pay late."

I think you mean cancelled, not implemented.

[CatchaFire]

Thanks for your help. I called the DHCR and they confirmed that the form had been incorrectly filled out. But the landlord has fairly substantial holdings, so I have no doubt he has access to paid expertise, meaning that it is unlikely that he just doesn't know what he's doing (perhaps I should have included that initially). Does this change your recommendation about what I should do? I am concerned about losing the PR if I push the landlord too hard on this.

As for the rider, the terms don't exactly match the previous ones, but apart from the provision about late payment, there's no substantial change. The DHCR rep told me that the late payment provision was unenforceable under all circumstances, though he presumably wasn't a lawyer.

[TenantNet]

The wealth of his holdings is irrelevant. He probably knows he's wrong. And yes, there is a danger he might end the PR.

A good tenant lawyer would recognize that presenting you with a rider that is not on the same terms and conditions essentially waives the LL's right to end the PR. (as it's required to be included in every renewal, and that means a valid rider. IMO it's a nullity.) Of course to get to that point, you would essentially need to accept what he's giving you. Later, if/when he tries to end the PR, your defense would be that he didn't reserve his rights in a proper rider. And that might result in a battle.

[CatchaFire]

Thanks for your help. If I send back the renewal forms unsigned via certified mail, along with a letter explaining why, I should send back the originals, right (having made copies of course)? And is it necessary to send back any other forms received along with them (RS rider, lead paint, etc)? (I tried the search function on this second question without much success.)

[TenantNet]

If your are objecting to the rider, then I'd send that back. I see no reason to bother with the others.