(a)
(1) A
tenant may apply to the DHCR for a reduction of the legal regulated rent to the
level in effect prior to the most recent guidelines adjustment, subject to the
limitations of subdivisions (c)-(h) of this section, and the DHCR shall so
reduce the rent for the period for which it is found that the owner has failed
to maintain required services. The order reducing the rent shall further bar
the owner from applying for or collecting any further increases in rent that
were or are authorized by this Title until such services are restored or no
longer required pursuant to an order of the DHCR. If the DHCR further finds
that the owner has knowingly filed a false certification, it may, in addition
to abating the rent, assess the owner with the reasonable costs of the
proceeding, including reasonable attorney's fees, and impose a penalty not in
excess of $ 250 for each false certification.
(2) Where an application for a temporary rent
adjustment pursuant to a Major Capital Improvement as set forth in section
2522.4(b) of this
Title has been granted, and collection of such rent adjustment commenced prior
to the effective date of the rent reduction order, the owner will not be
permitted to continue to collect the rent adjustment while the rent reduction
order is in effect.
(b)
Proceedings pending on the effective date of this Code (May 1, 1987) involving
tenant complaints of owners' failure to provide hotel services shall be
determined in accordance with the RSL and Hotel Industry Code in effect on
April 30, 1987.
(c) Except for
complaints pertaining to heat and hot water or other conditions requiring
emergency repairs, before filing an application for a reduction of the legal
regulated rent pursuant to subdivision (a) of this section, a tenant should
notify the owner or the owner's agent in writing of all the service problems
listed in such application. A copy of the written notice to the owner or agent
with proof of mailing or delivery should be attached to the application.
Applications should be filed with the DHCR no earlier than 10 days after such
notice is given to the owner or agent. Failure to provide such prior written
notice will not be grounds for dismissal of the application. Applications based
upon a lack of adequate heat or hot water must be accompanied by a report from
the appropriate city agency finding such lack of adequate heat or hot
water.
(d)
(1) In the event notice of any inspection is
given by the DHCR in a proceeding commenced pursuant to this section, the
inspection shall be conducted on notice to both the owner and tenant.
(2) Upon receipt of a copy of the tenant's
complaint from the DHCR, an owner shall have 20 days in which to respond if the
tenant provided DHCR with the proof of the written notice to the owner. If the
tenant did not provide proof of written notice to the owner, an owner shall
have 60 days in which to respond. If the tenant's complaint indicates that the
tenant has been forced to vacate the premises, the owner shall have five days
to respond. If the complaint pertains to heat and hot water or to a condition
which in DHCR's opinion may require emergency repairs, the owner shall have 20
days to respond. Nothing herein shall preclude DHCR from granting an owner's
request for a reasonable extension of time to respond in order to establish
that service problems have been repaired. If during this period of time, an
owner has attempted, but been unable to obtain access to the subject housing
accommodation to correct the service or equipment deficiency, the owner should
set forth such facts in the response. Upon receipt thereof, in order to
facilitate the resolution of the complaint, the DHCR may direct an inspector to
accompany the owner or the owner's agent to the housing accommodation to
determine whether such access is being provided. In order for DHCR to
coordinate the inspection, the owner should indicate that access has been
denied in the response submitted to the DHCR and should include copies of two
letters to the tenant attempting to arrange for access. Each of the letters
must have been mailed at least eight days prior to the date proposed for
access, and must have been mailed by certified mail, return receipt requested.
Exceptions to such requirements for inspection may be permitted under emergency
conditions, where special circumstances exist, or pursuant to court order. The
service complaint, or objection to a rent restoration application, by a tenant
who fails to provide access at the time arranged by the DHCR for the inspection
will be denied.
(e)
Certain conditions complained of as constituting a decrease in a required
service may be de minimis in nature, and therefore do not rise to the level of
a failure to maintain a required service for the purposes of this section. Such
conditions are those that have only a minimal impact on tenants, do not affect
the use and enjoyment of the premises, and may exist despite regular
maintenance of services.
The following schedule sets forth conditions that will
generally not constitute a failure to maintain a required service. However,
this schedule is not intended to be exclusive, and is not determinative in all
cases and under all circumstances. Therefore, it does not include all
conditions that may be considered de minimis, and there may be circumstances
where a condition, although included on the schedule, will nevertheless be
found to constitute a decrease in a required service.
Schedule of De Minimis Conditions Building-Wide
Conditions
1. Air conditioner--failure
to provide in lobby, hallways, stairwells, and other non-enclosed public
areas.
2. Building entrance
door--removal of canopy over unlocked door leading to vestibule; changes in
door-locking devices, where security or access is not otherwise
compromised.
3. Carpeting--change
in color or quality under certain circumstances; isolated stains on otherwise
clean carpets; frayed areas which do not create a tripping hazard.
4. Clotheslines--removal of, whether or not
dryers are provided.
5.
Cracks--sidewalk cracks which do not create a tripping hazard; hairline cracks
in walls and ceilings.
6.
Decorative amenities--modification (e.g., fountain replaced with rock garden);
removal of some or all for aesthetic reasons.
7. Elevator--failure to post elevator
inspection certificates; failure to provide or maintain amenities (e.g.,
ashtray, fan, recorded music).
8.
Floors--failure to wax floors; discrete areas in need of cleaning or dusting,
where there is evidence that janitorial services are being regularly provided
and most areas are clean (see janitorial services, item 12).
9. Garage--any condition that does not
interfere with the use of the garage or an assigned parking space (e.g.,
peeling paint where there is no water leak).
10. Graffiti--minor graffiti inside the
building; any graffiti outside the building where the owner submits an
affidavit of on-going maintenance indicating a reasonable time period when the
specific condition will be next addressed.
11. Landscaping--modification; failure to
maintain a particular aspect of landscaping where the grounds are generally
maintained.
12. Janitorial
services--failure to clean or dust discrete areas, where there is evidence that
janitorial services are being regularly provided because most areas are, in
fact, clean.
13. Lighting in public
areas--missing light bulbs where the lighting is otherwise adequate.
14. Lobby or hallways--discontinuance of
fresh cut flowers; removal of fireplace or fireplace andirons; modification of
furniture; removal of some furnishings (determined on a case by case basis);
removal of decorative mirrors; reduction in lobby space where reasonable access
to tenant areas are maintained; elimination of public area door mat; failure to
maintain a lobby directory that is not associated with a building intercom;
removal or replacement of window coverings (see decorative amenities, item
6).
15. Mail
distribution--elimination of door-to-door or other methods of mail distribution
where mailboxes are installed in a manner approved by the U.S. Postal
Service.
16. Masonry--minor
deterioration; failure to point exterior bricks where there is no interior leak
damage.
17. Painting--Change in
color in public areas under certain circumstances (e.g., not in violation of
the New York City housing maintenance code); replacement of wallpaper or
stenciling with paint in the public areas; isolated or minor areas where paint
or plaster is peeling, or other similarly minor areas requiring repainting,
provided there are no active water leaks; any painting condition in basement or
cellar areas not usually meant for or used by tenants; any painting condition
that is limited to the top-floor bulkhead area provided there is no active
water leak in such area.
18.
Recreational facilities--modifications, such as reasonable substitution of
equipment, combination of areas, or reduction in the number of items of certain
equipment where overall facilities are maintained (see roof, item
19).
19. Roof--discontinuance of
recreational use (e.g., sunbathing) unless a lease clause provides for such
service, or formal facilities (e.g., solarium) are provided by the owner; lack
of repairs where water does not leak into the building or the condition is not
dangerous.
20. Sinks--failure to
provide or maintain in compactor rooms or laundry rooms.
21. Storage space--removal or reduction of,
unless storage space service is provided for in a specific rider to the lease
(not a general clause in a standard form residential lease), or unless the
owner has provided formal storage boxes or bins to tenants within three years
of the filing of a tenant's complaint alleging an elimination or a reduction in
storage space service.
22.
Superintendent/maintenance staff/management--decrease in the number of staff,
other than security, provided there is no decrease in janitorial services;
elimination of on-site management office; failure to provide an on-site
superintendent, provided there is no decrease in janitorial services.
23. Television--replacement of individual
antennas with master antenna; visible cable; television wires; or other
technologies.
24. Toilet in public
areas--removal of (except in buildings containing class B units).
25. Windows--sealed, vented, basement or
crawl space windows, other than in areas used by tenants (e.g., laundry rooms);
cracked fire-rated windows; peeling paint or other nonhazardous condition of
exterior window frames.
Individual Apartment Conditions
1. Appliances and fixtures--chips on
appliances, countertops, fixtures or tile surfaces; color-matching of
appliances, fixtures or tiles.
2.
Cracks--hairline cracks; minor wall cracks, provided there is no missing
plaster, or no active water leak.
3. Doors--lack of alignment, provided
condition does not prevent proper locking of entrance door or closing of
interior door.
4. Floor--failure to
provide refinishing or shellacking.
5. Noise--caused by another tenant.
6. Window furnishings--failure to re-tape or
re-cord venetian blinds.
(f) In determining whether a condition is de
minimis, the DHCR may consider the passage of time during which a disputed
service was not provided and during which no complaint was filed by any tenant
alleging failure to maintain such disputed service, as evidencing that such
service condition is de minimis, and therefore does not constitute a failure to
maintain a required service, provided that:
(1) for purposes of this subdivision, the
passage of four years or more shall be considered presumptive evidence that the
condition is de minimis, with such four-year period to be measured without
reference to any changes in building ownership or the tenancy of the subject
housing accommodation;
(2) services
required to be provided by laws or regulations other than the RSL and this Code
shall not be subject to this subdivision.
(g)
(1)
Except as to complaints of inadequate heat and/or hot water, or applications
relating to the restoration of rents based upon the restoration of such
services, whenever a complaint of building-wide reduction in services, or an
owner's application relating to the restoration of rents based up on the
restoration of such services is filed, the tenants or owner may submit with the
complaint, answer or application, the contemporaneous affidavit of an
independent licensed architect or engineer, substantiating the allegations of
the complaint, answer, or application. The affidavit shall state that the
conditions that are the subject of the complaint, answer or application were
investigated by the person signing the affidavit and that the conditions exist
or do not exist. The affidavit shall specify what conditions were investigated
and what the findings were with respect to each condition. The affidavit shall
state when the investigation was conducted, must be submitted within a
reasonable time after the completion of the investigation, and when served by
DHCR on the opposing party, will raise a rebuttable presumption that the
conditions that are the subject of the complaint, answer or application exist
or do not exist.
(2) The
presumption raised by the affidavit may be rebutted only on the basis of
persuasive evidence, including a counter affidavit by an independent licensed
architect or engineer, or a report of a subsequent inspection conducted, or a
subsequent violation imposed by a governmental agency, or an affirmation signed
by 51 percent of the complaining tenants. Except for good cause shown, failure
to rebut the presumption within 30 days will result in the issuance of an order
without any further physical inspection of the premises by DHCR.
(3) There must be no common ownership, or
other financial interest, between such architect or engineer, and the owner or
tenants, and the affidavit shall state that there is no such relationship or
other financial interest. The affidavit must also contain a statement that the
architect or engineer did not engage in the performance of any work, other than
the investigation, relating to the conditions that are the subject of the
affidavit, and must contain the original signature and professional stamp of
the architect or engineer, not a copy. DHCR may conduct follow-up inspections
randomly to ensure that the affidavits accurately indicate the conditions of
the premises. Any person or party who submits a false statement will be subject
to all penalties provided by law.
(h) The amount of the reduction in rent
ordered by the DHCR pursuant to this section shall be reduced by any credit,
abatement or offset in rent which the tenant has received pursuant to section
235-b of the Real Property Law, that relates to one or more conditions covered
by such order.