N.Y. Comp. Codes R. & Regs. tit. 9 § 2102.4

Current through Register Vol. 46, No. 18, May 1, 2024

Section 2102.4 - Grounds for decrease of maximum rent

The administrator at any time, on his own initiative, or on application of the owner or tenant, may order a decrease of the maximum rent otherwise allowable, only on the grounds that:

(a)

(1) Where a maximum rent has been established for a housing accommodation, other than in a rooming house, pursuant to section 2101.1(d) of this Title, and the landlord has filed a proper and timely registration statement pursuant to section 2103.3 of this Title, the administrator may order a decrease in the maximum rent where such maximum rent is substantially higher than the maximum rents for comparable housing accommodations, giving due consideration to any factors bearing on the equities involved.

(2) Where a maximum rent has been established for housing accommodations in rooming houses pursuant to section 2101.1(d), (e) or (h) of this Title, and the landlord has filed a proper and timely registration statement pursuant to section 2103.3 of this Title, the administrator may order a decrease in the maximum rent where such maximum rent is substantially higher than the maximum rents for comparable accommodations. Such comparability shall be limited to comparable accommodations in the same establishment, if any. The administrator may also order a decrease in the maximum rent where such maximum rent is based on a change in the number of occupants or the terms of occupancy and is higher than the amount by which the landlord customarily varied the rent for such number of occupants or terms of occupancy as reflected by the maximum rents for such rooms or units and terms of occupancy in effect on March 1, 1950, and where the landlord had no such customary variation and the maximum rent established upon a change in the number of occupants or the terms of occupancy is more than the rental value of such changed occupancy. In all such cases the administrator may take into consideration any factors bearing on the equities involved.

(b) There has been a substantial deterioration of the housing accommodations because of the failure of the landlord to properly maintain the same, or there has been a decrease in the dwelling space, essential services, furniture, furnishings or equipment required under section 2101.5 of this Title. It shall be no defense to an application to decrease the maximum rent that furniture or furnishings were removed on or after May 1, 1955 from a furnished housing accommodation with the consent of the tenant.

(c) A municipal department having jurisdiction certifies that the housing accommodation is a fire hazard or is in a continued dangerous condition or detrimental to life or health, or is occupied in violation of law.

(d) Under subdivision (b) of this section, the maximum rent of the housing accommodations shall be decreased by that amount which the administrator finds to be the reduction in the rental value of the housing accommodations because of the substantial deterioration or decrease in dwelling space, essential services, furniture, furnishings or equipment. The administrator may, however, take into consideration all factors bearing on the equities involved.

(e) Notwithstanding any other provision of this Subchapter, where a maximum rent has been established for a housing accommodation in a rooming house, the administrator may order a decrease in the maximum rent, having regard for any factors bearing on the equities involved, consistent with the purposes of the act to correct speculative, abnormal and unwarranted increases in rent.

(f)

(1) No increase in maximum rent pursuant to these regulations shall be collected from a tenant to whom there has been issued a tax abatement certificate pursuant to section 467-b of the Real Property Tax Law as amended by chapter 689, Laws of New York, 1972 (tax abatement for rent controlled property occupied by senior citizens) except as may be prescribed in such certificate.

(2) The administrator, upon application by the tenant on prescribed forms shall issue such tax abatement certificate where he finds that the tenant is eligible. A tenant shall be eligible for such tax abatement certificate if the requirements of section 467-b of the Real Property Tax Law amended by chapter 689 are complied with, and the governing body of the city, town, or village wherein the housing accommodations are located has adopted a local law, ordinance, or resolution in accordance with the provisions of said section.

(g) The amount of the reduction in maximum rent ordered by the administrator pursuant to subdivision (b) of 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

(h) There has been an approved conversion from master metering of electricity, with the cost of electricity included in the rent, to individual metering of electricity, with the tenant paying separately for electricity, and is in amounts set forth in a Schedule of Rent Reductions for different-sized rent controlled housing accommodations included in Operational Bulletin 2014-1 governing electrical conversions issued pursuant to this subdivision and section 2109.8 of this Title by DHCR, 92-31 Union Hall Street, Jamaica, Queens, New York, and available at DHCR's website at www.hcr.ny.gov, and determined as follows:

(1) Direct Metering: Where the conversion is to direct metering of electricity, with the tenant purchasing electricity directly from a utility, such Schedule of Rent Reductions is based on the median monthly cost of electricity to tenants derived from data from the United States Census Bureau's " New York City Housing and Vacancy Survey," as tabulated by the New York City Rent Guidelines Board, 1 Centre Street, Suite 2210, New York, New York, and available on its website at rentguidelinesboard.cityofnewyork.us, and as further adjusted where appropriate to reflect differences in electric rates outside New York City. The charge for electricity is not part of the maximum rent and is not subject to this Subchapter. The resolution of any dispute arising from the billing or collection of such charge is not within the jurisdiction of the Commission. A conversion to direct metering is required to include rewiring the building unless the owner can establish that rewiring is unnecessary.

(2) Submetering. Where the conversion is to submetering of electricity, with the tenant purchasing electricity from the owner or a contractor retained by the owner, who purchases electricity from a utility at the bulk rate, such Schedule of Rent Reductions is based on the median monthly cost of electricity to tenants derived from data from the United States' Census Bureau's " New York City Housing and Vacancy Survey," as tabulated by the New York City Rent Guidelines Board, 1 Centre Street, Suite 2210, New York, New York, and available on its website at rentguidelinesboard.cityofnewyork.us, adjusted to reflect the bulk rate for electricity plus a reasonable service fee for the cost of meter reading and billing, based on the maximum estimated fee included in the "Residential Submetering Manual" revised October 2001, published by the New York State Energy Research and Development Authority, 17 Columbia Circle, Albany, New York, and available on its website at www.nyserda.org, and further adjusted where appropriate to reflect differences in electric rates outside New York City, and reflected in Operational Bulletin 2014-1. The owner or contractor retained by the owner is not permitted to charge the tenant more than the bulk rate for electricity plus a reasonable service charge for the cost of meter reading and billing. The charge for electricity as well as any related service surcharge is not part of the maximum rent and is not subject to this Subchapter. The resolution of any dispute arising from the billing or collection of such charge or surcharge is not within the jurisdiction of the Commission. A conversion to submetering does not require rewiring the building provided the owner submits an affidavit sworn to by a licensed electrician that the existing wiring is safe and of sufficient capacity for the building.

(3) Recipients of Senior Citizen Rent Increase Exemptions (SCRIE) or Disability Rent Increase Exemptions (DRIE). For a tenant who on the date of the conversion is receiving a SCRIE or DRIE authorized by section 26-405(m) of the City Rent and Rehabilitation Law, the rent is not reduced and the cost of electricity remains included in the rent, although the owner is permitted to install any equipment in such tenant's housing accommodation as is required for effectuation of electrical conversion pursuant to this subdivision.

(i) After the conversion, upon the vacancy of the tenant, the owner, without making application to the commission, is required to reduce the maximum rent for the housing accommodation in accordance with the Schedule of Rent Reductions set forth in Operational Bulletin 2014-1, and shall not be subject to this Subchapter. As of June 14, 2019, fuel pass-along to tenants under rent control is prohibited. Notwithstanding any other provision of law, rule, regulation, chapter or administrative code, tenants of housing accommodations which are subject to rent control under this chapter shall not be subject to a fuel adjustment or pass-along increase in rent and any such increase to such tenant shall be null and void.

(ii) After the conversion, if a tenant ceases to receive a SCRIE or DRIE, the owner, without making application to the commission, may reduce the rent in accordance with the schedule of rent reductions set forth in Operational Bulletin 2014-1, and thereafter the tenant is responsible for the cost of his or her electricity, and for the legal rent as reduced, including any applicable major capital improvement rent increase based upon the cost of work done to effectuate the electrical conversion, for as long as the tenant is not receiving a SCRIE or DRIE. Thereafter, in the event that the tenant resumes receiving a SCRIE or DRIE, the owner, without making application to the commission, is required to eliminate the rent reduction and resume responsibility for the tenant's electric bills.

(4) Every three years, upon the publication of a new New York City Housing and Vacancy Survey, and tabulation of the survey data by the New York City Rent Guidelines Board, DHCR shall issue a new Operational Bulletin governing electrical conversions setting forth rent reductions based on the new survey data, and shall move to amend the regulations to incorporate by reference the new Operational Bulletin, the new New York City Housing and Vacancy Survey, and Rent guidelines Board tabulation. At such time as New York State Energy Research and Development Authority issues a new Residential Electric Submetering Manual setting forth a new maximum estimated submetering service fee, DHCR shall move to amend the regulations to incorporate that document by reference.

(i)

(1) Certain conditions complained of as constituting a substantial deterioration of a housing accommodation because of a reduction in an essential service may be de minimis in nature, and therefore do not rise to the level of a failure to maintain an essential 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 an essential 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 an essential service.

SCHEDULE OF DE MINIMIS CONDITIONS

BUILDING-WIDE CONDITIONS

1. AIR CONDITIONING:

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 landlord 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 landlord; 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 landlord 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 non-hazardous 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.

(2) In determining whether a condition is de minimis, the administrator 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 an essential service, provided that:

(i) 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;

(ii) services required to be provided by laws or regulations other than the Rent Law and this Subchapter shall not be subject to this subdivision.

(3)

(i) 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 a landlord's application relating to the restoration of rents based upon 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 (if the affidavit is offered by the tenants) or do not exist (if the affidavit is offered by the landlord). 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 the administrator on the opposing party, will raise a rebuttable presumption that the conditions that are the subject of the complaint, answer or application exist (if the affidavit is submitted by the tenants), or do not exist (if the affidavit is submitted by the landlord).

(ii) 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 the administrator.

(iii) There must be no common ownership, or other financial interest, between such architect or engineer, and the landlord 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. The administrator 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.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 2102.4

Amended New York State Register November 8, 2023/Volume XLV, Issue 45, eff. 11/8/2023