FAQ's - Overcharges and Leases

FAQ's - Overcharges and Leases
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FAQ's - Overcharges and Leases

1) How much of an increase in rent will I have to pay in NYC when my lease is renewed?

The owner may charge a rent increase based on guidelines promulgated by the applicable Rent Guidelines Board. For more information, see Fact Sheet #26 and/or the NYC Rent Guidelines Board's website for the current guideline information.

 

2) What are the legally permissible methods for increasing the rent of a rent regulated apartment?

There are a number of ways to increase the rent for apartments under both Rent Control and Rent Stabilization. For specific information, see Fact Sheets:

#5 - Vacancy Leases in Rent Stabilized Apartments
#12 - Rent Adjustments for New Services, New Equipment or Improvements to an Apartment
#13 - Fuel Cost Adjustment
#22 - Maximum Base Rent Program (MBR) Questions and Answers for Owners
#23 - Fuel Cost Adjustment Questions and Answers for Owners
#26 - Guide to Rent Increases for Rent Stabilized Apartments in NYC

 

3) A tenant has, without justification, refused to sign a renewal lease. What recourse does the owner have?

Failure of a tenant to sign and return a proper renewal lease can be grounds for eviction. The owner can request that DHCR mediate the issue. Mediation is used to resolve the problem without the owner having to go to court. Owner's Request for Mediation forms are available at local rent offices.

 

4) Can a tenant be evicted if the owner of the building fails to give him or her a renewal lease?

If the building owner fails to offer a renewal lease to the tenant, the tenant shall not be deprived of his or her rights under the regulations. The owner shall be barred from commencing any action or proceeding against the tenant based upon the lack of a required renewal lease. See Fact Sheet #4.

 

5) Do I have a right to renew my lease?

Tenants in rent stabilized apartments have a right to select a one or two year renewal lease term. Generally, the renewal lease must keep the same terms and conditions as the expiring lease. See Fact Sheet #4.

 

6) Under rent stabilization in NYC, when must the renewal lease be offered?

The owner must give written notice of renewal by mail or personal delivery not more than 150 days and not less than 90 days before the existing lease expires. A failure of the tenant to respond within 60 days of the offering may lead to eviction proceedings. See Fact Sheet #4.

 

7) What if my owner does not offer me a renewal lease?

A tenant should first contact the owner to obtain a lease. If the owner fails to provide a renewal lease, the tenant has a right to file a complaint with DHCR on form RA90, Tenant's Complaint Of Owner's Failure To Renew Lease And/Or Failure To Furnish A Copy of A Signed Lease. See Fact Sheet #4.

 

8) Under what circumstances can a late fee and/or legal fees be charged?

There must be clauses in the original lease that authorize the collection of these fees. If these clauses are not included in the original lease, they cannot be charged.

Please note, the amount of the late fee must be reasonable. DHCR has generally considered a late fee to be reasonable if it is five percent (5%) of the monthly rent.

An owner can only charge legal fees when ordered by a court of competent jurisdiction.

 

9) Does an owner have a right to collect a security deposit?

Yes, at the initial renting of the apartment to the tenant, the owner may collect a security deposit. The amount of a security deposit for rent regulated apartments can be no more than one month's rent. The security deposit must be kept by the owner in an interest bearing account in a NYS bank. See Fact Sheet #9.

 

10) Are family members protected from eviction when the tenant dies or permanently leaves the apartment? What is the definition of "family member"?

Generally, succession rights are afforded to family members who have resided as a primary resident in the apartment for at least two years (one year for family members who are senior citizens or disabled) prior to the death of, or the permanent vacating of, the apartment by the tenant.

A "family member" is defined as a spouse, son, daughter, stepson, stepdaughter, father, mother, stepfather, stepmother, brother, sister, grandfather, grandmother, grandson, granddaughter, father-in-law, mother-in-law, son-in-law or daughter-in-law of the tenant.

The definition of a family member also includes any other person residing with the tenant in the housing accommodation as a primary resident, who can prove emotional and financial commitment and interdependence between such person and the tenant. See Fact Sheet #30.

 

11) My building owners did not offer me a timely lease renewal, as they thought that I no longer used the apartment as my primary residence. They did not prove this in court and now they have to offer me a renewal lease. When does it commence and what are my rights?

Renewal leases are required to be offered between 90 and 150 days prior to the expiration of a lease.

In this situation, the owners would offer a renewal lease less than 90 days prior to the expiration of the existing lease. Therefore, the tenant has the option of requesting that the lease be dated to start on (1) the date a renewal lease would have begun had a timely offer been made or (2) on the first rent payment date occurring at least 90 days after the date that the owner does offer the lease to the tenant.

The guideline increase to be charged can never be more than the rate in effect on the date in option (1). Whether the tenant chooses option (1) or (2), the new rent shall not go into effect before the first rent payment date occurring at least 90 days after the offer is made.

 

12) Is a building owner required to provide a tenant with an itemized bill?

Owners are not required to provide rent stabilized tenants with itemized rent bills.

Owners are required to provide rent controlled tenants with a bill that itemizes the fuel cost adjustment separate from the rent.

 

13) May an owner collect a lease or maximum collectible rent increase from a tenant when a DHCR rent reduction order for decrease in services is still in effect?

If the rent reduction order was issued to a rent stabilized tenant, the owner cannot collect a renewal lease rent increase from that tenant or a vacancy lease increase from the next tenant, but can calculate the increase in the new lease. The rent that is collected will remain frozen until DHCR issues a rent restoration order.

If the rent reduction order was issued to a rent controlled tenant,  only rent reductions for essential services ( See Policy Statement 90-1) bar the maximum collectible rent from being increased until DHCR issues a rent restoration order. If the rent controlled tenant vacates the apartment, a fair market rent set for the incoming rent stabilized tenant can be charged, but no other rent increases can be collected until DHCR issues a rent restoration order.

 

14) Are tenants required to pay NYC Sales Tax to the owner on a garage/parking space that is subject to Rent Stabilization?

The NYC Sales Tax can be collected if the tax was actually imposed on the owner for the garage/parking space and the garage/parking space was provided to the tenant in a charge separate from the apartment rent. It can never be calculated on the apartment rent.

 

15) Are the spouses in lawfully performed same sex marriages, entitled to the same rent protections applicable to spouses in lawfully performed opposite sex marriages?

Yes. This will broaden the scope of both how succession rights can apply and the right to include the name of a spouse on the lease.

 

16) Can a tenant in a rent regulated apartment take in a roommate and is there a limit on the rent that the roommate can be charged?

When only one tenant is named on a lease, the tenant has the right to take in a roommate and the roommate's dependent children. When two or more tenants are named on the lease, the number of tenants and roommates cannot exceed the number of tenants named in the lease. In all situations, occupancy may be restricted in order to comply with municipal regulations concerning overcrowding.

In a rent stabilized apartment, the rent collected from the roommate cannot exceed their proportionate share of the apartment. For example, one tenant named on a lease can take in one roommate and the roommate can be charged no more than half of the rent charged to the prime tenant. The roommate can be advised to file a complaint of rent overcharge with DHCR if they were charged in excess of that proportionate share.

With regard to a rent controlled apartment, a roommate may not be charged an amount of rent that is in excess of the legal rent for the apartment. Any determination of a rent overcharge is under the jurisdiction of the civil court.

 

17) How is the legal rent adjusted when an MCI order is issued after a renewal lease had been executed?

If the effective date of the MCI order is before September 30 (the date used for calculating guideline adjustments), the renewal lease increase may be recalculated based on the higher legal rent, which now includes the entire dollar amount of the MCI rent increase. This will result in a larger renewal lease increase. The affected lease(s) does not have to be reissued, but the owner must give the tenant a statement showing the rental recalculation.

If the effective date of the MCI increase is after September 30, the increase in the legal rent will not be compounded by the guideline adjustment(s) until the next lease renewal.

The actual rent paid by the tenant is subject to an annual MCI rent increase cap (6% in NYC; 15% outside of NYC).

 

18) The owner of a Rent Controlled apartment failed to charge the washing machine appliance surcharge within a reasonable time after becoming aware of the installation. Did the owner waive the right to collect the surcharge?

No. However, the owner must seek the approval of DHCR by filing Form RN-79b. Once DHCR issues an order of approval, the surcharge is collectible prospectively only and not retroactive to the time of installation.

 

19) Does a tenant in a rent stabilized apartment have the right to add their spouse's name to the lease?

Yes. The tenant has the right, upon request to the owner, to have the name of his or her spouse added to the lease as an additional tenant, if the spouse resides in the apartment as a primary residence. There is no rent increase associated with this change, other than the approved renewal lease increase rates in effect at the time of renewal.

 

20) Is the landlord permitted to collect additional security deposit money at the time of a lease renewal, while a DHCR rent reduction order is in effect?

Yes, except for a rent reduction order that reduces the rent to $1.00 based on the issuance of a municipal agency vacate order, making the apartment not habitable.

 

21) Focus on: Non-Primary Residency

My building owners did not offer me a timely lease renewal, as they thought that I no longer used the apartment as my primary residence. They did not prove this in court and now they have to offer me a renewal lease. When does it commence and what are my rights?

Renewal leases are required to be offered between 90 and 150 days prior to the expiration of a lease.

In this situation, the owners would offer a renewal lease less than 90 days prior to the expiration of the existing lease. Therefore, the tenant has the option of requesting that the lease be dated to start on (1) the date a renewal lease would have begun had a timely offer been made or (2) on the first rent payment date occurring at least 90 days after the date that the owner does offer the lease to the tenant.

The guideline increase to be charged can never be more than the rate in effect on the date in option (1). Whether the tenant chooses option (1) or (2), the new rent shall not go into effect before the first rent payment date occurring at least 90 days after the offer is made.

  • Fact Sheet #4 - "Lease Renewal in Rent Stabilized Apartments"
  • Opinion Letter - March 15, 2006: COL-1969
     
  • Rent Stabilization Code Citations - Non Primary Residency RSC 2524.4, 2524.2, 2520.11(k), 2520.6(u)
    The owner shall not be required to offer a renewal lease to a tenant, or in hotels, to continue a hotel tenancy, and may commence an action or proceeding to recover possession in a court of competent jurisdiction, upon the expiration of the existing lease term, if any, after serving the tenant with a notice as required pursuant to section 2524.2 of this part, only on one or more of the following grounds:

    c) Primary residence. The housing accommodation is not occupied by the tenant, not including subtenants or occupants, as his or her primary residence, as determined by a court of competent jurisdiction; provided, however, that no action or proceeding shall be commenced seeking to recover possession on the ground that the housing accommodation is not occupied by the tenant as his or her primary residence unless the owner or lessor shall have given 30 days' notice to the tenant of his or her intention to commence such action or proceeding on such grounds. Such notice may be combined with the notice required by section 2524.2(c) (2) of this Title.
  • RSC 2425.2 Termination notices

    (a) Except where the ground for removal or eviction of a tenant is nonpayment of rent, no tenant shall be removed or evicted from a housing accommodation by court process, and no action or proceeding shall be commenced for such purpose upon any of the grounds permitted in section 2524.3 or 2524.4 of Part, unless and until the owner shall have given written notice to such tenant as hereinafter provided.

    (b) Every notice to a tenant to vacate or surrender possession of a housing accommodation shall state the ground under section 2524.3 or 2524.4 of this Part, upon which the owner relies for removal or eviction of the tenant, the facts necessary to establish the existence of such ground, and the date when the tenant is required to surrender possession.

    (c) Every such notice shall be served upon the tenant:

    (2) in the case of a notice on any other ground pursuant to section 2524.3, at least seven calendar days prior to the date specified therein for the surrender of possession, or in the case of a notice pursuant to section 2524.4(c) of this Part, at least 90 and not more than 150 days prior to the expiration of the lease term; or

    (d) All notices served pursuant to subdivision (c) of this section shall be in lieu of any notice in any lease or rental agreement providing for a lesser time for termination of tenancy.
     

  • RSC 2520.11(k)
    (k) housing accommodations which are not occupied by the tenant, not including subtenants or occupants, as his or her primary residence as determined by a court of competent jurisdiction;
     

  • RSC 2520.6(u)

    (u) Primary residence. Although no single factor shall be solely determinative, evidence which may be considered in determining whether a housing accommodation subject to this Code is occupied as a primary residence shall include, without limitation, such factors as listed below:

    (1) specification by an occupant of an address other than such housing accommodation as a place of residence on any tax return, motor vehicle registration, driver's license or other document filed with a public agency;

    (2) use by an occupant of an address other than such housing accommodation as a voting address;

    (3) occupancy of the housing accommodation for an aggregate of less than 183 days in the most recent calendar year, except for temporary periods of relocation pursuant to section 2523.5(b)(2) of this Title; and

    (4) subletting of the housing accommodation.