N.Y. Comp. Codes R. & Regs. tit. 9 § 2502.3

Current through Register Vol. 46, No. 22, May 29, 2024

Section 2502.3 - Application for adjustment of initial legal regulated rent

(a) Fair market rent appeals.

(1)

(i) The tenant of a housing accommodation for which the initial legal regulated rent was established under section 2501.1 of this Title based upon the rent reserved in a lease or other rental agreement which became effective on or after January 1, 1974 may file within 90 days after notice has been received pursuant to section 2503.1 of this Title, an application on forms prescribed by the division for adjustment of the initial legal regulated rent on the allegation that such rent is in excess of the fair market rent. This right is limited to the first tenant taking occupancy on or after January 1, 1974, except where such tenant had vacated the housing accommodation prior to the service by the owner of the notice required by section 2503.1 of this Title. In such event, any subsequent tenant shall also have a right to file an application for adjustment of the legal regulated rent until the owner mails the required notice and 90 days shall have elapsed without the filing of an application by a tenant continuing in occupancy during said 90-day period. However, no fair market rent appeal may be filed after six years from the date of initial occupancy of the housing accommodation. Once a fair market rent appeal has been filed, no subsequent tenant may file such appeal.

(ii) The tenant must allege in such appeal:

(a) that the initial rent is in excess of the fair market rent; and

(b) facts which, to the best of his or her information and belief, support such allegation.

(iii) Such appeal shall be dismissed where:

(a) it is filed more than 90 days after the certified mailing to the tenant of the form required by section 2503.1 of this Title; or

(b) it is filed more than six years from the date of the initial stabilized tenancy.

(2) The division shall be guided by guidelines promulgated by the Rent Guidelines Board with jurisdiction over the housing accommodation for the determination of fair market rents and, upon a determination that the initial legal regulated rent is in excess of the fair market rent, the division shall establish by order a new legal regulated rent, and further order a refund of any excess rent paid since the base date or the date of the commencement of the tenancy, whichever is later, provided that no refund order shall relate to a period more than two years prior to the local effective date as defined in section 2500.4 of this Title. The order shall direct the affected owner to make the refund of any excess rent to the tenant in cash, check or money order, or as a credit against future rents over a period not in excess of six months, and that if the landlord does not make the refund, that the order may be enforced or the rent offset by the tenant in the same manner as a division order awarding penalties pursuant to section 2506.1(h)(5) of this Title. In the absence of collusion between the present owner and any prior owner, where no records sufficient to establish the fair market rent were provided at a judicial sale, or such other sale effected in connection with, or to resolve, in whole or in part, a bankruptcy proceeding, mortgage foreclosure action or other judicial proceeding, an owner who purchases upon such sale or subsequent to such sale shall not be liable for excess rent collected by any owner prior to such sale. An owner who did not purchase at such sale, but who purchased subsequent to such sale shall also not be liable for excess rent collected by any prior owner subsequent to such sale to the extent that such excess rent is the result of excess rent collected prior to such sale.

(3) Court-appointed Receivers. A Receiver who is appointed by a court of competent jurisdiction to receive rent for the use or occupation of a housing accommodation shall not, in the absence of collusion or any relationship between such Receiver and any owner or other Receiver, be liable for excess rent collected by any owner or other Receiver, where records sufficient to establish the fair market rent have not been made available to such Receiver.

(b) Unique or peculiar circumstances.

(1) The landlord or tenant of a housing accommodation described in section 2501.1 of this Title may, within 60 days of the local effective date of the act or the commencement of the first tenancy thereafter, file an application on forms prescribed by the division to adjust the initial legal regulated rent on the grounds that the presence of unique or peculiar circumstances materially affecting the legal regulated rent has resulted in a rent which is substantially different from the rents generally prevailing in the same area for substantially similar housing accommodations.

(2) The division may grant an appropriate adjustment of the initial legal regulated rent upon finding that such grounds do exist, provided that the adjustment shall not result in a legal regulated rent substantially different from the rents generally prevailing in the same area for substantially similar housing accommodations.

(3) Any such adjustment shall consider in addition to the factors contained in paragraph (2) of this subdivision, the equities involved and the general limitation that such adjustment can be put into effect without dislocation and hardship inconsistent with the purposes of the act and with due regard for preserving the regulated rental housing market.

(4) Previous regulation of the rent for the housing accommodation under the PHFL or any other State or Federal law shall not in and of itself constitute a unique and peculiar circumstance within the meaning of this subdivision. Any change in economic circumstances arising as a consequence of the termination of such prior regulation of rent may only bead dressed in a proceeding for adjustment of the legal regulated rent under subdivisions (e) and (f) of section 2502.4 of this Part.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 2502.3

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