[NYtenants-online] NY Tenants Online 5/14/02
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Tue, 14 May 2002 10:57:00 -0400
NYtenants Online/TenantNet 5/14/02
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IN THIS ISSUE ...
1. Events: Met Council & CWTF-HC
2. New tenant member appointed to RGB! Hearing schedule in flux!
3. Rent-Increase Vote Put Off (News)
4. Bloomberg Press Release on RGB appointment
5. New Rent Guidelines Board Schedule
6. City Limits on the new RGB Tenant Representative
7. Court Upholds DHCR Rules (NY Law Journal)
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MET COUNCIL ON HOUSING 2002 ANNUAL ASSEMBLY
Thursday, May 16
6:30 to 8:30 PM
Judson Memorial Church
241 Thompson Street
(between West 3rd and West 4th Streets in Manhattan;
A/C/E/F/V/S to West 4th Street)
with forums on:
* The New Rent Guidelines Board
* Renewing the Rent Laws: 2002 and Beyond
* A Tenant Overview of the New City Council
plus: speakers, refreshments, & election of Met Councils Board of Directors
Admission is membership dues: $15-$25.
Absolutely nobody turned away for lack of cash.
For more information, call Met Council at 212-979-6238 ext 3
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CITY-WIDE TASK FORCE ON HOUSING COURT
2002 ADVOCATE TRAINING SERIES
NYCHA & Section 8: Applications & Terminations
May 15, 2002 from 2-5 P.M.
The Legal Aid Society
49 Thomas Street
Between Church St. and West Broadway
1st Floor Conference Room
Trainer:
Adriene Holder
The Legal Aid Society
Civil Appeals Division
To register, call Stephanie Townsend Bakare
212-962-4266 x11
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NEW TENANT MEMBER APPOINTED TO RGB! HEARING SCHEDULE IN FLUX!
by Dave Powell
The Mayor has filled the vacant tenant seat on the Rent Guidelines Board
with Legal Aid attorney and tenant advocate, Adrienne Holder! This is
excellent news for tenants. And though the make up of the RGB is still far
from reflecting the diversity tenants of in New York City, Adrienne is the
first African American AND woman to serve on the RGB since the death of
Leslie Holmes, another tenant warrior.
The combined pressure of all of you who made calls, of lobbying by tenant
groups and of efforts by Adrienne herself, actually DID postpone the RGB
preliminary vote originally set for May 7. This was very important because
Adrienne's appointment came only hours before the scheduled pre-vote, and
though she knows tenants' needs and arguments well, there was no way she --
or anyone else -- could have digested the data and made credible proposals
without more time.
HOWEVER this put the entire RGB schedule out of wack. See below for new
dates for the public hearing and final vote.
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RENT-INCREASE VOTE PUT OFF
Daily News, May 8, 2002
by Lisa L. Colangelo
A vote on citywide rent increases was postponed late yesterday after Mayor
Bloomberg announced he was filling a vacancy on the nine-member Rent
Guidelines Board. Last week, Bloomberg said he wouldn't ask the board to
reschedule its preliminary vote on new guidelines even though the board
was short a tenant representative.
But Bloomberg changed his mind yesterday at the request of his new
appointee, Legal Aid lawyer Adriene Holder. "He said he wanted his tenant
representative to be well-prepared," Holder said. "Although this is not a
binding vote, it's very important. ... I could not really get involved in a
well-informed debate and really be able to participate without being more
prepared."
The board takes its final vote on increases for the city's 1 million
rent-stabilized apartments in June.
Tenant advocates are lobbying for a rent freeze or even rollback, citing a
report that shows landlord costs especially fuel dropped dramatically
last year. But landlords are seeking an increase of 5% for one-year leases
and 9% for two-year leases, citing rising expenses. A date for the
preliminary vote was not set.
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MAYOR MICHAEL R. BLOOMBERG APPOINTS SECOND TENANT REPRESENTATIVE TO THE
RENT GUIDELINES BOARD
Chairman Marvin Markus Postpones Today's Public Meeting
Mayoral Press Release, May 7, 2002
Mayor Michael R. Bloomberg today announced that a second tenant
representative has been appointed to the Rent Guidelines Board, which is
chaired by Marvin Markus. Adriene L. Holder, an attorney, will serve on the
Board along with another tenant representative, two members who are
appointed to represent owner interests, and five members (including the
chairperson) who are appointed to represent the general public. The Mayor
chooses all nine appointments.
"We have selected a high caliber individual who is well equipped to
represent the interests of tenants," said Mayor Bloomberg. "The Chairman
has postponed the meeting so that Adriene Holder will have some time to
familiarize herself with the issues facing the Board."
The new date for the preliminary vote, which was supposed to take place
today, has not been rescheduled yet but will be as soon as possible.
The Rent Guidelines Board is mandated to establish rent adjustments for the
nearly one million dwelling units subject to the Rent Stabilization Law in
New York City. The Board holds a series of annual public meetings and
hearings to consider research regarding operating and maintenance costs,
the cost of financing, housing supply and cost of living indices which is
produced by staff and from testimony by owners, tenants, advocacy groups
and industry experts. The RGB publishes reports based on this research for
use by the public, other governmental agencies and private organizations,
and provides information to the public on housing questions.
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NEW RENT GUIDELINES BOARD SCHEDULE
RGB PRELIMINARY VOTE
Monday, May 20, 5:30pm - 9:30 pm
Hamilton/U.S. Custom House Auditorium (basement)
1 Bowling Green, a.k.a The Smithsonian/Museum of the American Indian,
(Manhattan), 4/5 to Bowling Green
ATTEND & TESTIFY
THE RGB PUBLIC HEARING
Wednesday, June 26, 10:00 am - 10:00 pm
Great Hall at Cooper Union, 7 E 7th St. (Manhattan)
N/R to 8th St., 6 to Astor Place.
To testify call: (212) 385-2934.
ATTEND THE RGB VOTE ON RENT ADJUSTMENTS
Thursday, June 27, 5:30 - 9:30 pm
Hamilton/U.S. Custom House Auditorium (basement)
1 Bowling Green, a.k.a The Smithsonian/Museum of the American
Indian,(Manhattan), 4/5 to Bowling Green
Call the Rent Guidelines Board to confirm dates. They are
subject to change: (212) 385-2934
Call Mayor Bloomberg
Tell him that rent stabilized tenants need a roll-back.
Mayor Bloomberg's Comment Line is (212) 788-9600
(Its a recording so you can call anytime)
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CITY LIMITS ON THE NEW RGB TENANT REPRESENTATIVE
Mayor Bloomberg appointed Legal Aid attorney Adriene Holder to fill the
vacant seat on the Rent Guidelines Board last Tuesday (despite predictions
of other candidates reported in last week's City Limits Weekly ["He's Back,
Too?" May 6]). Given the title just two hours before the board was
scheduled to take its preliminary vote on new rent guidelines for the
city's 1 million rent-regulated apartments, Holder asked the mayor to
postpone the meeting to give her time to review the latest data on rent
stabilized housing and to read recent tenant and landlord testimony on the
matter. Mayor Bloomberg obliged, and rescheduled the preliminary vote for
Monday, May 20. The board will take its final vote on June 27.
Holder is no stranger to tenant issues. A lawyer at the Legal Aid Society
since 1991, she has worked on the case battling community service
requirements for public housing residents, and she is currently defending
Section 8 tenants who claim the Housing Authority took too long to help
them relocate after their landlord lost his federal funding for keeping his
building in constant disrepair.
As for her position as a member of the RGB--a post she describes as worthy
of "congratulations and condolences"--she said she is continuing to review
the material and has yet to decide what kind of rent increase, if any, she
supports. But, she added, noting a rise in landlord profits and a drop in
expenses, "If tenants don't get a break this year, I don't know when they
ever will."
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COURT UPHOLDS DHCR RULES
By Warren A. Estis and Jeffrey Turkel
New York Law Journal
May 1, 2002
In Gioia v. New York State Div. of Housing & Community Renewal, DHCR beat
back an omnibus attack on a host of DHCR amendments relating to rent
stabilization outside of New York City. The April 15, 2002 decision may
well impact on a similar challenge, pending in Supreme Court Kings County,
to recent amendments to New York City's Rent Stabilization Code.
Background
On Dec. 20, 2000, DHCR published amendments to the Emergency Tenant
Protection Regulations (ETPR).[1] The ETPR, pertaining to stabilization
outside the City, implements the Emergency Tenant Protection Act (ETPA).[2]
The same day, DHCR published amendments to the Rent Stabilization Code
(RSC).[3] The RSC governs rent stabilization within the five boroughs, and
implements the Rent Stabilization Law, as amended.[4]
DHCR was required to amend the ETPR and the RSC by L. 1997, ch. 116, the
so-called Rent Regulation Reform Act of 1997 (RRRA-97). The RRRA-97
dramatically altered the rent regulatory system with respect to, inter
alia, vacancy increases, luxury deregulation, demolition and challenges to
legal rents. Section 44 of the RRRA-97 provided that "[a]ny rule or
regulation or form necessary for the implementation of this act, or any
section of this act, is directed to be made and completed within 180 days
after the effective date of this act." Forty-one months later, DHCR
published the necessary regulations.
'Gioia'
In 2001, various upstate tenants (represented by Westchester/Putnam Legal
Services) challenged specific ETPR amendments on both substantive and
procedural grounds. The case was heard by Westchester County Supreme Court
Justice Francis A. Nicolai.
The tenants preliminarily alleged that DHCR's promulgation of the amended
regulations violated various notice and public comment provisions of the
State Administrative Procedure Act (SAPA). The court disposed of these
procedural claims, finding that DHCR's amendments "were promulgated in
substantial compliance with SAPA." The court then addressed the tenants'
substantive challenges.
The tenants asserted that the challenged regulations were contrary to law,
violated the ETPA, or were otherwise unauthorized. The tenants also claimed
that DHCR had acted in excess of its jurisdiction, and had failed to
perform various duties enjoined upon it by law.
The court, citing the 1990 Court of Appeals case of Versailles v. New York
State Div. of Housing & Community Renewal,[5] held that "DHCR has broad
authority to interpret the ETPA and to issue regulations, which may
'inevitably require some changes in the legal relationship between
landlords and tenants.'" This language, used in Versailles to uphold a 1987
DHCR regulation favorable to tenants, would come back to haunt the tenants
in Gioia 12 years later.
The tenants first objected to various ETPR amendments that strictly
interpreted the so-called four year rule relating to rent overcharge
complaints and Fair Market Rent Appeals. The court rejected the tenants'
challenge. The court observed that DHCR's interpretation of the four year
rule had been upheld by the Appellate Division in both the First
(Brinkerhoff v. DHCR)[6] and Second (Perry v. DHCR)[7] Departments. The
court also noted that the First Department had twice held that the four
year rule applied to Fair Market Rent Appeals (Muller v. DHCR;[8] Estate
of Goldman v. DHCR).[9]
The tenants sought to overturn ETPR § 2502.8, which allows owners to
collect surcharges for washing machines, dryers or dishwashers. The court
upheld the regulation, focusing on DHCR's general latitude under the ETPA,
as well as existing case law:
"ETPA § 10 provides that rent regulations promulgated by DHCR shall
prescribe standards with respect to the terms and conditions of new and
renewal leases, additional rent and such related matters as other
'ancillary' facilities. Further, the imposition of such surcharges has been
upheld. Parker v. CAB, 56 N.Y.2d 678."
The tenants sought to annul ETPR § 2502.7, which implements the RRRA-97's
authorization of statutory increases for a one or two year vacancy lease.
The tenants alleged that the provision eliminated the "current ban" on
increases for multiple vacancies within one year. The court disagreed:
"The RRRA of 1997 added ETPA § 10 (a)(a-1), which mandates vacancy bonuses,
providing for the addition of a base bonus of 20 percent to any vacancy
lease entered into after the effective date of the provision and for
additional bonuses depending upon the length of the occupancy of the tenant
in possession prior to the vacancy. ETPA § 10 (a)(a-1) provides for bonuses
for each vacancy lease without regard to the number of vacancies in a rent
guidelines period."
The tenants next attacked ETPA § 2503.4 (d). The provision contains a
schedule of de minimis service conditions which, even if found to exist,
will not constitute a failure to provide required services. The court
rejected the challenge, observing that courts had traditionally held that
the rent agency had broad discretion to determine whether a service is
required by law, and whether that service has been maintained. Moreover,
DHCR's "de minimis" doctrine (which existed as an Operational Bulletin long
before its codification) had been approved by the courts in Lee v.
Higgins[10] and Hakim v. DHCR.[11] The Court also noted that the list was
not exclusive and was not necessarily determinative of any particular
service complaint.
The tenants also challenged ETPR § 2503.4 (e)(1), which provides that the
existence of a service reduction for four years before a complaint is filed
shall be considered presumptive evidence that the reduction is de minimis.
The court upheld the regulation, noting that "the presumption is rebuttable
and the section specifically exempts conditions involving health or safety."
The court next addressed two recent code amendments that have angered many
tenants. The first provision, ETPR § 2505.8, limits the amount a tenant may
charge a roommate to a "proportionate share of the rent" and treats any
excess rent collected as profiteering. The tenants asserted -- on grounds
the court termed "illusory" -- that such arrangements were private and
could be necessitated by an individual tenant's financial means. The court
held that profiteering of any kind is inconsistent with rent stabilization.
It should also be observed that financial agreements between a tenant and
his or her roommate are no more "private" than a lease between a landlord
and a tenant.
The court also upheld ETPA § 2544.2 (b), which makes harassment by a tenant
a new basis for eviction. The tenants asserted that this provision was
ultra vires the ETPA. The court disagreed, stating:
"However, ETPR § 2544.2 (b) specifically provides that 'the lawful exercise
by a tenant of any right pursuant to any law or regulation relating to
occupancy of a housing accommodation, shall not be deemed an act or
harassment or other ground for eviction'. Petitioners argue that the ETPA
does not contain the same language as this regulation and is thus
unauthorized citing Siegal v. DHCR, 143 A.D.2d 430. However, in Siegal, the
Appellate Division invalidated a previous attempt to promulgate this
regulation on procedural grounds rather than substantive grounds. Further,
notwithstanding Siegal, eviction on the grounds of nuisance has been held
to be rational. 301 E. 69th St. Assoc. v. Eskin, 156 Misc.2d 122."
The tenants also challenged ETPR 2503.4 (b), which provides that a tenant,
before filing a decreased service complaint with DHCR, must first give his
or her landlord ten days written notice of the condition alleged. The court
found the regulation to be reasonable:
"It is clear that an owner must have an opportunity to respond and cure a
condition prior to issuance of a final determination. Dworman v. DHCR, 94
N.Y.2d 359. Thus, amended ETPR § 2503.4 (b), which requires the tenant to
give written notice to the owner of all service problems ten days before
the tenant can file a rent reduction application with DHCR is a rational
amendment. The requirement also set forth in ETPR § 2503.4 (b) that
applications based upon a lack of adequate heat or hot water are to be
supported by findings from the appropriate city agency is likewise rational."
Finally, the court also upheld ETPR § 2503.4 (c)(2), which affords an owner
45 days to answer a tenant's complaint of reduced services. The court
credited DHCR's argument that "the previous 20 day answering period was
often insufficient to allow for repairs."
'Myers' and 'Cecilia'
A challenge to various RSC amendments, Brooklyn Housing Family Services,
Inc. v. Lynch, is currently pending before Justice Rivera of the Kings
County Supreme Court. Although the Gioia decision is in no way binding upon
Justice Rivera, the decision nevertheless constitutes persuasive authority
for the proposition that DHCR has broad authority to implement the various
rent regulatory statutes, even if such implementation alters the legal
relationship between landlords and tenants. In any event, it is likely that
both challenges will ultimately be decided by the Appellate Division,
Second Department.
Landlords received two more favorable rulings within the last several
weeks, both of which we hope to examine in a future column. In Myers v.
Frankel,[12] the Appellate Division, Second Department, reversing
Appellate Term,[13] held that the four-year statute of limitations
precludes examination of the rental history of an apartment prior to the
four-year period preceding the filing of a rent overcharge claim, even
where the landlord fails to register the apartment for several years, or
where the registrations are erroneous or even fraudulent. (Note: Rosenberg
& Estis PC represented amicus curiae Rent Stabilization Association of New
York, Inc. in Myers.)
In Cecilia v. Irizarry,[14] the Appellate Division, Second Department
reversed an Appellate Term order which held that several provisions of the
Rent Stabilization Code were inconsistent with the governing statute. The
Appellate Division did not address the legality of the Code provisions at
issue, and instead dismissed the complaint under the four-year statute of
limitations for rent overcharges.
The court, citing Versailles, held that "DHCR has broad authority to
interpret the ETPA and to issue regulations, which may 'inevitably require
some changes in the legal relationship between landlords and tenants.'"
Warren A. Estis is a founding partner and Jeffrey Turkel is a partner at
Rosenberg & Estis in New York
FootNotes:
[1] 9 NYCRR § 2500.1 et seq.
[2] L. 1974, ch. 576, § 4.
[3] 9 NYCRR §2520 et seq.
[4] Admin. Code of the City of New York, § 26-501 et seq.
[5] 76 N.Y.2d 325, 559 N.Y.S.2d 472 (1990).
[6] 275 A.D.2d 622, 713 N.Y.S.2d 56 (1st Dep't 2000).
[7] 281 A.D.2d 629, 722 N.Y.S.2d 556 (2nd Dep't 2001).
[8] 263 A.D.2d 296, 703 N.Y.S.2d 80 (1st Dep't 2000).
[9] 270 A.D.2d 169, 706 N.Y.S.2d 381 (1st Dep't 2000).
[10] 186 A.D.2d 138, 587 N.Y.S.2d 431 (2nd Dep't 1992).
[11] 273 A.D.2d 3, 708 N.Y.S.2d 112 (1st Dep't 2000).
[12] N.Y.L.J., 2002 WL 467140.
[13] 184 Misc. 2d 608, 708 N.Y.S.2d 566 (App. T. 2nd Dep't 2000).
[14] N.Y.L.J., 2002 WL 464908.
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