Should I file Failure to Renew Lease complaint with DHCR?

[duchess57]

I recently posted a question about my rights in the event that my landlord sell the building I live in (rent stabilized apartment) to someone who takes it owner occupancy. Your advice was great, and now I have another question:

I also went to a tenant's rights legal clinic in midtown and consulted with an attorney for free. Because I have not received a new lease in 10 years (I did receive one initially 9 years ago, but the LL never gave me my signed copy, so the last one I have a copy of was 10 years ago), he suggested I file a complaint with DHCR through the RA-90 form to provide evidence that prior to the sale I was trying to exercise my right to renewal.

However, when I was reading the explanation of tenant's rights to renewal on this site, the paragraph states that it's possible to complain about a LL's offer (or lack thereof, I assume) but "This is usually only advisable when the dispute threatens to go to Housing Court."

Why is that? I'm trying to figure out whether I should follow the free attorney's advice or not (I have no idea if he's actually any good...though he seemed informative).

Thank you!

[Cranky Tenant]

In the past ten years that your landlord has failed to renew your lease has he raised the rent?

[duchess57]

Not really. The last lease I have ended in 2006. Back in 2009 he gave me a renewal lease with a new rent in keeping with the guidelines. I signed and gave it back to him and started paying the new rate. However, he never returned the signed lease to me. I now know I didn't have to pay that increase until he gave me my signed copy, but I didn't know that at the time. My LL is actually a decent guy, very old at this point with health problems and quite forgetful.

He has not tried to raise rent outside of when he gives me a renewal lease.

I suppose I could now complain that I've been overcharged for 10 years, since I don't have a lease with the new rate on it. But that's less of an issue for me than not having an active lease. My understanding is that if the new owner files for owner occupancy, they can do that only when my lease is up for renewal. So it seems if I get a 2-year lease now, any new owner would have to honor that and THEN file for owner occupancy. But if I'm in this limbo of no actual lease, then isn't it "up for renewal" at any time?

[TenantNet]

Different schools of thought. One is to let sleeping dogs lie. Seems the current LL is not eager to increase your rent, so why make a fuss? OTOH, a new LL is likely to be much different. What do you have that proves you are rent stab? Your original lease? Was the renewal lease on the RTP-8 form? Has the unit been registered with DHCR every year? Have you gotten a rent history of the unit back to 1984?

Not having an active lease is not the end of the world. I think my last lease was 5 or 6 years ago. Rent can't go up without it.

In my opinion, no owner can file of OO unless you have a lease, and then they would have to wait. Of course I don't have cases to point to on that.

If you wish you can file WITH DHCR for failure to renew lease. That might piss the current LL off. Then you would join other RS in paying regular increases.

[duchess57]

I have my prior two leases. Not the very first one I got when I moved in in 1998 (I didn't know to keep them all) but the last two. They're on a form that says APARTMENT LEASE and then "attached rider sets forth rights and obligations of tenants and landlords under the rent stabilization law". It does not say RTP-8 on it. It says T 327.

I just called DHCR and confirmed my apartment is rent stabilized, even though my LL wasn't using the right form. They're sending me the rent history for the apartment, so I'll have that, too.

I think my question is getting boiled down to this: If a new owner buys and claims owner occupancy, are they required to first give me an updated, two-year lease? Or can they argue my last two-year lease expired (10 years ago) and they do not have to renew?

I would only file the complaint if it's necessary to prove that I've been trying to get a two-year renewal.

[TenantNet]

Does it look similar to this? http://www.mns.com/pdf/stabilized_rental.pdf

If so, that's a Blumberg Lease, commonly used as a first lease. Read the entire lease and see if it says anything about being Rent Stab.

Then you can get a DHCR history going back to 1984. http://goo.gl/M5lH1m (seems you've done that). A phone call stating the unit is RS means nothing. You need the document.

The Blumberg lease does not, in itself, establish that a unit is RS. It's OK to be the first lease, but for RS units, ALL subsequent leases must be on DHCR's RTP-8 form. http://goo.gl/rDCwsU

The RS rider helps, but is not dispositive.

As for your question, it's hard to speculate about what might happen. Under OO, a LL can refuse to renew a lease, but that does not affect the current lease. http://goo.gl/md2Vf9

[duchess57]

Yes, that's it. Item 32 talks about rent increases according to the rent guidelines board. So my LL didn't follow protocol and use the right form. I'm getting the DHCR history. It should arrive in the next few days.

I understand that if a rent stabilized lease expires and the LL doesn't renew, the expired lease is considered to be in effect. Does that mean it's in effect with no end date, and the only way to put a new expiration date on it is to provide a new lease?

[TenantNet]

I don't know if it's considered to be "in effect," but a RS tenant where the LL has failed to offer a renewal is protected and maintains all RS rights. Without a lease the rent can't increase. I would opine that without a lease the LL would not be able to file for OO. But if it comes to that, you should consult with a tenant attorney.

In many situations it is better for the tenant to NOT file with DHCR for the LL's failure to offer a renewal lease, especially as the rent can't increase. But there are times where it makes sense. If there are doubts about your RS status, it probably makes sense. Of course timing is also important.

[duchess57]

Thank you very much for your time. I feel well armed to wait to see what the new LL does. I've had to read a lot to get to where I am today, and I have two tenant attorneys with strong recommendations from friends who have used them and won. So I can get a lawyer on my team with a phone call.

I might have another question when I get the DHCR rent history, but I'll open a new thread for that.

You provide invaluable information! Thank you for all your volunteer hours--I'm sure they're a lot.

[TenantNet]

Have the attys won in OO cases? Any case depends on the facts, so nothing is a slam dunk.

Keep it on the same thread.

[duchess57]

Ok, here we go. I have received the DHCR printout going back to 1984. The apartment is rent stabilized, and I am correctly listed at the tenant from 1998 when I moved in to 2006 when my LL stopped filing the annual registrations (his health problems started then).

The rents noted are very close to what's on my leases, but are off by 50 cents here, two dollars there...I'm not sure why. I have noticed that my LL (English is his second language) always had a hard time with addition and with calculating percentage increases. But nothing was ever off more than a few dollars, so I was never going to be shaming about literacy.

However, the amount of the last lease registered in 2005 is off by $45, and not in my favor (I think he copied some other lease's information under my name as the start/end dates are also off by a couple of months). I spoke to DHCR about correcting it, and was told I first need to ask my LL to file an amendment, and then file a complaint if there's no action. I was also told I could do this either with my current LL or the new LL, as the new LL would still be responsible for the correction.

Do you know if that's true?

Now about the lease amount...since 2009 I have been paying an amount that's actually $86 more than what was on my last signed lease. At the time, my LL had shown me a new lease with the amount on it, which I signed and gave back to him. And I started paying the new rent, not knowing I didn't have to until he gave me a signed copy back. However, he never gave me my signed copy back. And he never registered it with DHCR. So in effect, I've been overpaying for 10 years.

I would like to start paying the amount that's on my 2005 lease (not what's registered, but what's actually written on the lease). Not to make life difficult for my current LL. I've certainly benefited from his lack of attention to lease increases over the last 10 years. But in anticipation of having a new LL, I'd like to have some record of paying the amount that's actually on my lease, not some inflated amount.

I thought I would do this by making a copy of the lease and writing a letter to my current LL explaining that I've discovered I've been overpaying, and that I'm reverting to the amount that's on my last signed lease. That way when the new LL comes in, I have the lease and a few cashed checks paying that amount.

Does this sound like a good approach regarding the rent amount?

And then finally, I'm going to follow your advice and find an attorney who has won owner occupancy cases and have a consultation regarding that part of my original question. It doesn't seem like there's anything for me to do until that buyer appears. But I just want to be sure. If filing a complaint for nonrenewal is good for me, then I'll do that.

[TenantNet]

I would not make a fuss over 50 cents or two dollars. I would make a fuss over $45. Problem is that it's beyond the 4-year statute of limitations. Did you pay the additional $45, or is it just on the registrations?

You could claim that the LL's failure to register the illegal increase starting in 2006 is in itself fraud, and that the 4-year limitations do not apply.

You do not have to ask the LL to file an amendment, but it probably can't hurt. If you do, I would not give him more than 2 weeks to do so. Yes, the new LL is the one who must do it once he owns the building.

As for the $86. again, you're beyond the 4 years. But without any registration, you might have a chance. In our opinion, what you describe is fraud by the LL.

When you sign leases, NEVER let the LL "show" it to you.

If the old LL still owns the building, I would try to negotiate with him, but you could also start paying the lower amount (and start to recover the overcharges). The LL could take you to court though, so keep that in mind.

Whatever you do, document it in writing. Ask the LL to register going back to 2005/6 and to make corrections. Put every detail in letters to him. Send certified. And if he's willing to correct things, get him to agree to it in writing.

[duchess57]

Thank you for all your help! I've learned so much here--all things I should know as a renter but had no clue.

I will do as you suggest above. I've already talked to the LL's son who is managing things right now and he agreed I should only pay what's on the last lease I have. He knows his father was very spotty with paperwork. He's already cashed the April check at the lower amount. But I will send a certified letter documenting my position.

I have to go out of town for a couple of weeks, but when I return I will talk to him about the overcharge and negotiate something there. But that's nothing compared to fighting a new landlord who potentially files for owner occupancy. That still remains my primary concern, and again, thank you so much for all your input.

I'm sure I'll be back as soon as the sale goes through...until then, keep up the good work!