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Administrative Review Filed 9 months ago

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

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Re: Administrative Review Filed 9 months ago

Postby TenantNet » Sun Jul 23, 2017 3:01 pm

That's better. I have no idea if an HPD inspector will do anything that is not a violation. They can't say whether something was done, or not, and at what price. You might need an engineer or architect for that - to show the work was not done.

Whatever you do, take many photos showing the old work in place. You can ask for a DHCR inspector. In some cases they might be better than the HPD inspector, especially as to the old work still existing.

I would attack the sufficiency of the LL's documentation. Not a contract could be important. That it's not itemized is a real problem. I would really pound away on that one. What about the check. Were both sides included? Does it match the invoice?

As for DOB filings, it's all on computer these days. In the 90's it was on paper and I don't know if DOB still maintains the paper files. Some larger drawings would have been put on microfiche. If you go to 250 Broadway (I think it's the 3rd floor, but ask when you get there), you can put in a requisition to access various files (look for the yellow cards). You can find the permit or application number on the DOB website (and they don't make it easy).

The clerks are rude and non-compliant in many cases, so you might need to suck-up to them and get help from the professionals (expediters) who are filing their own projects. Many will help to speed you along.

For electrical, construction and plumbing work there has to be application folders and permits. For items like putting new tiles on a floor, no DOB permission is needed.
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Re: Administrative Review Filed 9 months ago

Postby flybyme03 » Sun Jul 23, 2017 5:50 pm

There was no cancelled check included for the IAI work, rather it was a statement from the supposed contractor saying invoice xxxx was paid in full, with no amount of that invoice listed in the statement or sworn under the penalty of perjury.
Furthermore the buyout check ($9000) to the former tenant (the one paying $385/month before me), was included and it was 3 months prior to the IAI check in question.
I just need to find a 3rd party source to verify all the photos I've taken showing that all the old floors exist, and that there never were electrical or plumbing permits issued fro the extent of work claimed.
Going after a lawyer now that its on my end to respond, but I am concerned I cant get all of this done in 21 days and need to know what to do to make sure I have a chance to submit a response. My landlord took over a year to supply documentation. How do I get an extension to make sure I have all the evidence ready?
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Re: Administrative Review Filed 9 months ago

Postby TenantNet » Sun Jul 23, 2017 6:26 pm

Usually DHCR wants a copy of the cancelled check, both sides. I would emphasize this.
Was it just a statement from the contractor, or an actual invoice from a bonafide company? If an invoice, was it itemized, i.e., X dollars for the floor, X dollars for the writing and so on.

You say the former tenant was paying $315. What year did this happen? The deregulation threshold has changed over the years, from $2,000 to $2,700 now. How many units in the building. That's important as the allowable IAI increase percentage depends on if there are 35 or more units in the building.

To get over $2,000 if it was done prior to 2011 (the $2,500 until 2015 and now $2,700), the IAI would be calculated as:

$315 X 1.20 = $378 (for vacancy increase)

$2000 - 378 = $1622. That amount should represent 1/60th of the amount spent (if the building has 35+ units). So $1622 X 60 = $97,320 that must have been spent on improvements.

See https://goo.gl/WdFztu for details on IAIs.

Please check my math - I'm doing this quickly in my head.

Also keep an eye on the "Altman" case that is pending at the NYS Court of Appeals. If you are the first tenant after the alleged deregulation, Altman, if upheld, would mean you are probably not deregulated, although the level of rent might be the same.

I don't think the buyout has any bearing in this case.

You could hire a tenant engineer. There are a few of them. One is at http://www.tenantengineer.com/ -- although I've not used him. You want someone who can prepare an affidavit showing a) certain work was not done (electrical, plumbing, etc), that it was done in a slipshod manner, and what it would likely cost. Although I don't know if DHCR considers claims the work was not in line with typical costs.

For an extension, write a letter to DHCR stating you are engaging an attorney or engineer or both and you want an additional 30 days to respond. Put your docket number on the letter.

In my experience they will grant one or maybe even two extensions. I've seen LLs get ten extensions, but do not count on them being so kind to tenants. They will not respond to the letter, so just assume it's OK.

DHCR is way behind on it's processing. I've submitted documents in a case almost a year behind when they said they wanted it. There's no guarantee though.
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Re: Administrative Review Filed 9 months ago

Postby flybyme03 » Sun Jul 23, 2017 7:05 pm

There was no canceled check on either side . There was only a statement, signed saying 'the work' was done and paid for, without reference to the amount or the actual work. no contract, no statement of work signed, ect.
The work apparently occurred in Oct 2002, after the former tenant was bought out in June 2002. So the work was over a 6 month period and the rent was raised to 2100 from 385 (sorry 315 was her initial rent). Over that magical 2000 threshold for deregulation in 2003

I've read that statements are admissible in lieu of contracts or invoices, but there is no secondary source confirming this. I am trying to supply the documentation or at least some authority that can confirm my claims and verify the photographs I have to show this.

Thak you, it's really nice to know that DHCR would actually press for more than these claims. I've been told " Boyd vs DHCR" is the most recent claim for determination so I'm trying to prove the other side. Mostly that without permits, and through photographs the supposed work was not completed and therefore not viable for the IAI increase
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Re: Administrative Review Filed 9 months ago

Postby TenantNet » Sun Jul 23, 2017 8:14 pm

OK, I would emphasize over and over that it was not a statement made under oath, without cancelled or itemized checks. I do not know if naked statements are OK, but I seem to remember some discussion of that somewhere - check the fact sheets. If so, see if they need to be in affidavit form.

Check here: http://www.nyshcr.org/Rent/OperationalB ... o20161.pdf

So former tenant left in 2002. The deregulation threshold at that time would have been $2,000. Take the rent of the departing tenant, add on the vacancy increase and any longevity increases (see the Fact Sheet on all that). Then figure out how much money must have been spent to get it over the $2,000 trigger. Figure the amount for the IAI should depend 1/60 or 1/40 on how many units are in the building. At least that is how it is now. Check to see what the fraction was in 2002. That might have been before they made the two different fractions.

So depending on the math, it might be that the money they spend was insufficient to get to the trigger. Put that in the reply, but don't bank on just that. Put everything else in as well.

In Boyd, at The Court of Appeals, the tenant lost.

On review of submissions pursuant to section 500.11 of the Rules, order reversed, with costs, judgment of Supreme Court, New York County, reinstated, and certified question answered in the negative. New York State Division of Housing and Community Renewal's determination denying tenant's petition for administrative review was not arbitrary or capricious, as tenant failed to set forth sufficient indicia of fraud to warrant consideration of the rental history beyond the four-year statutory period (see Matter of Grimm v State of N.Y. Div. of Hous. & Community Renewal Off. of Rent Admin., 15 NY3d 358, 366-367 [2010]). Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam concur.


However, I've not read it too closely, so I can't say if it would be applicable.
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Re: Administrative Review Filed 9 months ago

Postby flybyme03 » Mon Jul 24, 2017 12:28 am

Yes, to everything you've said. I really appreciate it. The amount listed was before the 1/60, so it would have been 1/40th. Through the math the amount they claim, just happens to be the exact amount with 18% vacancy added that would have been just over the threshold of $2000 in 2002. So the math, is right. What you mentioned about Boyd is true, and the current standard. However in that case the tenant suggested the price of items based on home depot and asking what it should have been. This is why I need to get some 3rd party to inspect and show that the work claimed like tearing up the old floors, replacing the sheet rock and including insulation (not the materials purchased) is not valid. Again I'm attempting to get a lawyer, I just cant do all of that in 21 days, now 7 days, so I don't know how is best to respond to DHCR other than to state what I'm doing and that it will take time to retrieve all evidence.
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Re: Administrative Review Filed 9 months ago

Postby TenantNet » Mon Jul 24, 2017 2:50 am

So redo my math using 1/40th.

As far as I know, Boyd had to do with indicia of fraud, and not with what was needed to prove the claim costs were actually spent. However I haven't looked at all the case history in Boyd, just the CoA ruling. There might be applicable discussion in some of the lower court decisions.

I don't know any case where DHCR will really second-guess the claimed costs submitted by the LL as long as the claimed costs are substantiated by proof such as invoices, cancelled checks and so on. But OTOH, some of the better tenant attorneys might now case law of that.

Just raising questions like "it costs X at Home Depot or Sears" is probably not sufficient for DHCR to actually investigate.

Look at the DHCR Fact Sheet. It's a question of fact and keep hitting them with facts (or lack of proof).

The DHCR inspector can look at work not done, although now we're talking 15 years, so in some cases like floor tiling, that might be harder to tell. OTOH, HPD inspectors only look for violations, not questions of fact or forensics.

Yeas ago I remember seeing a DHCR inspector looked at an electrical installation to determine that it was not grounded properly. A DOB inspector would also look at that but a HPD inspector would not.
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Re: Administrative Review Filed 9 months ago

Postby TenantNet » Mon Jul 24, 2017 5:14 am

I asked a tenant who has some experience in this sort of thing. He wondered if you might wish to convert this to a Supreme Court case. That might be possible, but it would involve dropping the DHCR claim (and perhaps issues of filing date and statute of limitations) and more than likely you would be advised to get a tenant attorney. All that can be expensive.

He also said:

Again, I’m ignorant of the strategy and tactics involved here, so my mind keeps returning to following the money trail and the DOB permit trail. It seems that a corrupt LL or contractor can submit any falsified fluff as proof of expenses… but getting Supreme Court discovery for bank accounts and transactions is another matter … of course a shrewd and forward thinking LL (in collusion with his go-to corrupt contractor) expecting to one day have his finances investigated might have been able to engineer a falsified paper trail to cover his butt …

DOB Job Applications include cost estimates (which has a bearing on the DOB fee structure) so for permitted work there should be a paper trail, with cost estimates, fees, and owner signatures in DOB’s archives. [my note: DHCR seems to ignore job estimates on DOB applications] Perhaps an expediter can shed some light on this … my understanding is that as a LL one would want to err on the side of lowballing when estimating the job cost with DOB, but not too low so that DOB rejects the application because it considers the costs incommensurate with the scope of the work … and tells the LL to go back to the drawing board.
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Re: Administrative Review Filed 9 months ago

Postby flybyme03 » Mon Jul 24, 2017 5:27 pm

Thanks so much to all for the input. I've Lawyered up and conveyed all this along with an extension request sent to DHCR while I look into the DOB filings. Interesting about the supreme Court. I was thinking this case is far more exaggerated than Boyd or Altman but guess that's for the lawyers to decide. Whew! I've learned so much. What a great resource
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Re: Administrative Review Filed 9 months ago

Postby TenantNet » Mon Jul 24, 2017 7:11 pm

Just curious - which lawyer did you go with? If you wish, you can answer on the forum or via Private Mail. Just understand if you file in Supreme and drop the DHCR proceeding, you might lose the filing date you got with DHCR. For example, for the 4-year statue of limitations imposed on overcharge claims. You could lose that date and have to start over with a new date based on when you file the case in Supreme Court. That could pre-empt consideration of various events. All I saying is be aware of consequences whichever route you choose.

OTOH, with a court case, you should be able to get discovery (which is not as-of-right with Housing Court). Not only can you subpoena files from the LL, the contractor and from DOB, you can get a DOB expert to come to court (some call it a custodian) who can explain how things are handled in the DOB bureaucracy, and undermine the LL's crafty attorney.
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Re: Administrative Review Filed 9 months ago

Postby TenantNet » Wed Jul 26, 2017 7:38 am

Just posted two new articles dealing with IAI issues:
viewtopic.php?f=15&t=12143
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Re: Administrative Review Filed 9 months ago

Postby flybyme03 » Mon Sep 25, 2017 2:22 pm

following up on this thread and could use some advice
I was able to go to the Department of Buildings and check all the permits and drawings for work done on my building. As I assumed, there was nothing filed in regards to my apartment. There were things filed for another renovation of the building around the same time for 2 different apartments and a deck installed. The work was all done for $30,000, whereas my apartment was claimed (without any corresponding paperwork, contract, receipt, or itemized invoice) for $70,000.
I also hired a Professional Architect who went through the work that was claimed to be done and did not see things like metal studs, subfloors, soundboard, or the electrical and plumbing work claimed but never filed or as he confirm done.
So I've got my evidence of Fraud, but after speaking with landlords I know on the block they suggest taking a different approach at this point.
Option 1: Continue with DHCR and submit all the information showing no permits for work and that the claimed work was not the work in the apartment now.
Pro: If I win, all the money, all the treble damages, and my apartment rent will be lowered and I will be stabilized.
Con: Its A lot of money and further research shows that my building is being bled for refinancing mortgages. The landlord could easily bankrupt the building and make collecting it expensive and impossible.

Option 2; Let's make a Deal....
My Architect noted that without any permits filed for my apartment, and most likely others, the Department of Buildings could send their own inspector to confirm it and launch an investigation where the city would fine my landlord for all the illegal work done over the years. Not only that the other apartments which were similarly illegally deregulated could also be used to convince him to settle on a cash amount similar to the DHCR ordered amount along with a reduced rent for what it should be.
Pro: I don't really lose anything by trying and he has been willing to negotiate when I reduced rent in the past. I would actually get the cash and if not I would just sit and he wouldnt be able to evict me
Con: I dont have any real protection from problems in the future, no stabilization, no ability to do DHCR again
Thoughts?
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