HCR-17-13-00005-P Regulations Govern the Implementation of the Emergency Tenant Protection Act

4/24/13 N.Y. St. Reg. HCR-17-13-00005-P

NEW YORK STATE REGISTER

VOLUME XXXV, ISSUE 17

April 24, 2013

RULE MAKING ACTIVITIES

DIVISION OF HOUSING AND COMMUNITY RENEWAL

PROPOSED RULE MAKING

HEARING(S) SCHEDULED

 

I.D No. HCR-17-13-00005-P

Regulations Govern the Implementation of the Emergency Tenant Protection Act

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Amendment of sections 2500.3(b)-(f), 2500.9(s), 2501.2(b), (c), 2502.4(a)(2)(vi)(22), (a)(7), (b)(3)(iii), 2502.5(c), 2502.6(a), 2503.4(a)(2), (b), (c)(2), 2503.5(b)(2), (3), 2504.3(c)(1), (2), 2505.6, 2506.1(a), (g), 2507.9(a), 2508.1, 2509.2, 2509.3, 2510.11, 2510.12, 2511.2 and 2511.4(b) of Title 9 NYCRR.

Statutory authority:

Emergency Tenant Protection Act of 1974, L. 1974, ch. 576, section 10a; L. 2011, ch. 97, part B, section 44

Subject:

Regulations govern the implementation of the Emergency Tenant Protection Act.

Purpose:

Modification based on DHCR's experience, court cases and input from regulated parties since last major amendments in 2000.

Public hearing(s) will be held at:

10:00 a.m., June 10, 2013 at Westchester District Rent Office, 75 S. Broadway, 2nd Fl., White Plains, NY; and 10:00 a.m., June 10, 2013 at Theodore Roosevelt Executive and Legislative Bldg., Peter Schmitt Memorial Legislative Chamber, 1st Fl., Mineola, NY.

Interpreter Service:

Interpreter services will be made available to hearing impaired persons, at no charge, upon written request submitted within reasonable time prior to the scheduled public hearing. The written request must be addressed to the agency representative designated in the paragraph below.

Accessibility:

All public hearings have been scheduled at places reasonably accessible to persons with a mobility impairment.

Substance of proposed rule (Full text is posted at the following State website:www.nyshcr.org):

9 NYCRR § 2500.3 new paragraph (b) is added to define the Office of Rent Administration.

9 NYCRR § 2500.3 paragraphs (c), (d) and (e) are re-lettered (d), (e), and (f) and a new paragraph (c) is added to designate the Tenant Protection Unit (TPU) as a distinct unit under DHCR.

9 NYCRR § 2500.9 new paragraph (s) is added to advise an owner to provide the first tenant of a deregulated unit an exit notice explaining how the unit became deregulated, how the rent was computed, and what the last regulated rent was and a copy of the rent registration indicating deregulated rent which should also be provided to the tenant.

9 NYCRR § 2501.2(b) is amended, 9 NYCRR § 2501.2(b)(2) is repealed, and 9 NYCRR § 2501.2(c) amended to provide that where a preferential rent is charged, the legal rent can only be preserved by disclosure in a tenant’s lease; a rent registration indicating a preferential rent will not be dispositive. DHCR shall review and the owner be required to submit the rental history immediately preceding a preferential rent to the present which may be prior to the four–year period preceding the filing of a complaint.

9 NYCRR § 2502.4(a)(2)(vi)(22) is amended to provide there will be no MCI rent increases for conversions from master to individual metering; however, electrical wiring for the building can be subject to an MCI rent increase.

9 NYCRR § 2502.4(a)(7) is renumbered (8) and a new paragraph (7) is added to provide that an outstanding service reduction or immediately hazardous violation will bar the granting of an MCI application with the ability to refile upon its prompt clearance.

9 NYCRR § 2502.4(b)(3)(iii) is amended to provide that a tenant receiving DRIE (disabled) benefits will not be subject to electrical sub-metering conversions; this conforms to how SCRIE (senior citizens) tenants are treated.

9 NYCRR § 2502.5(c) and (d) are re-lettered (d) and (e) and a new paragraph (c) is added to require additional information in leases as to how the rent was calculated, including details regarding any individual apartment improvement (IAI) rent increases; tenants will be able to request documentation from owners to support an IAI increase; if the lease information and/or any requested IAI documents are not provided, there can be no rent increase until the information/documentation is provided unless the owner can prove the rent charges is otherwise legal; if the rent charged is above the legal rent during the period when information/documentation is not provided, there can be a rent overcharge proceeding and no rent increase can be collected until the information/documentation is provided.

9 NYCRR § 2502.6(a) is amended and 9 NYCRR § 2506.1(g) and (h) are re-lettered (h) and (i) and new subdivision (g) is added to provide that when the rent on base date for establishing rent under the four-year look-back period cannot be determined or the rent set on the base date was the subject of a fraudulent scheme to deregulate, the 3-part, court-sanctioned default formula for setting rents, e.g., lowest rent for comparable unit in building, will be used and a general catch-all, e.g. data compiled by DHCR or sampling method, will be available.

9 NYCRR § 2503.4(a)(2), (b), and (c)(2) are amended to provide: A tenant complaint of a service decrease will not be dismissed if the tenant failed to provide the owner with notice of the problem prior to filing a complaint with DHCR; any decrease in rent based upon a service decrease order will include a bar to future MCI and vacancy bonus rent increases; an owner’s time to respond to a service decrease complaint will be reduced to 20 days if the tenant, in fact, gives prior notice, otherwise the response time is 60 days; if the tenant is forced to vacate, a 5 day response time is required and; if the complaint is for lack/reduction in heat/hot water then a 20 day response time is required.

9 NYCRR § 2503.5(b)(2) and (3) are amended to provide that tenants holding over after the lease expires (they failed to renew their lease) will be treated as month-to-month tenants and not held to a new full lease term.

9 NYCRR § 2504.3(c)(1) and (2) are amended to clarify amend certain notice requirements.

9 NYCRR § 2505.6 is amended to redefine harassment to include certain false filings and false statements designed to interfere with tenant’s quiet enjoyment or rights.

9 NYCRR § 2506.1(a)(2)(ii) is amended and 9 NYCRR § 2506.1(a)(2) adds new subparagraphs (iii), (iv), (v), (vi), (vii), (viii) and (ix) and 9 NYCRR § 2506.1(a)(3)(iii) is amended to provide a more comprehensive list of exceptions to the rule that when examining rent overcharges the look-back period to determine an overcharge is four years. The list of exceptions includes: when there is an allegation of a fraudulent scheme to deregulate the unit; prior to base date there is an outstanding rent reduction order based upon a decrease in services; it is determined that there is a willful rent overcharge; there is a vacant or exempt unit on the four-year base date, in which case DHCR may also look at the last rent registration, or; there is a need to determine whether a preferential rent exists.

9 NYCRR § 2507.9(a) is amended by adding new subdivisions (c) and (d) to amend certain notice requirements.

9 NYCRR § 2508.1 is amended by adding new paragraphs (c) and (d) to provide certain notice requirements.

9 NYCRR § 2509.2 is amended to clarify that registration information may be collected as required by DHCR, ETPA, TPR, or 2507.11 and to provide that owners will not be able to amend a rent registration without going through an administrative proceeding with notice to the tenant unless the change is governed by another government agency.

9 NYCRR § 2509.3(a) is amended to clarify that a rent freeze for failing to register will include MCI increases and vacancy bonus increases.

9 NYCRR § 2510.11 is amended to clarify filing requirements for Article 78 proceedings.

9 NYCRR § 2510.12(a) is amended to clarify the 60 day statute of limitations from date of mailing of an order.

9 NYCRR § 2511.2 is amended to prohibit luxury decontrol filings on SCRIE and DRIE tenants.

9 NYCRR § 2511.4 is amended to correct a typographical error.

Text of proposed rule and any required statements and analyses may be obtained from:

Gary R. Connor, General Counsel, Division of Housing and Community Renewal, 25 Beaver St., 7th Floor, New York, New York 10004, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

Five days after the last scheduled public hearing.

This rule was not under consideration at the time this agency submitted its Regulatory Agenda for publication in the Register.

Summary of Regulatory Impact Statement

1. STATUTORY AUTHORITY:

The Emergency Tenant Protection Act of 1974 (“ETPA”)(McKinney Unconsol. Law 8621, et seq.), Laws of 1974 Chap. 576, section 10a provides authority to the Division of Housing and Community Renewal (“DHCR”) to amend the Tenant Protection Regulations (“TPR”); Section 44 of Chap. 97, Part B of the Laws of 2011 (“the Rent Law of 2011”) further empowers DHCR to promulgate rules and regulations to implement and enforce all provisions of the Rent Law of 2011 and any law renewed or continued by the Rent Law of 2011 which includes the ETPA.

ETPA §§ 8626(d)(3), 8627(a), 8630(a) and 8632(a) also provide specific statutory authority governing the subject matter of many of the proposed amendments.

2. LEGISLATIVE OBJECTIVES:

The overall legislative objectives are contained in Sections 8622 and 8623 of the ETPA. Because of a serious public emergency, the regulation of residential rents and evictions is necessary to prevent the exaction of unreasonable rents and rent increases and to forestall other disruptive practices that would produce threats to public health, safety and general welfare. DHCR is specifically authorized by ETPA § 8630 to promulgate regulations to protect the rights granted under the ETPA and is empowered by the Rent Law of 2011 to promulgate regulations to implement and enforce new provisions added by the Rent Law of 2011 as well as any law continued or renewed by the Rent Law of 2011 which includes the ETPA.

3. NEEDS AND BENEFITS:

DHCR has not engaged in an extensive amendment process with respect to these regulations since 2000. Since that time there has been significant litigation interpreting, not only these regulations, but the laws they implement. In addition, DHCR has had twelve years of experience in administration which informs this process as does its continuing dialogue during this period with owners, tenants, and their respective advocates.

This dialogue is not only through its Office of Rent Administration (ORA) which engages in close to one hundred forums and meetings on an annual basis, but through the Tenant Protection Unit (TPU) which has been created to investigate and prosecute violations of the ETPA.

DHCR underwent the regulatory process for the promulgation of amendments expressly required by the Rent Law of 2011 which generated further comments.

This specific promulgation process was also preceded by a mass email outreach to known stakeholders in the field to solicit even further comments and suggestions.

The needs and benefits of some of the specific modifications proposed are highlighted below.

a. Addition of TPU.

Its inclusion demonstrates DHCR’s commitment to the TPU and proactive enforcement of the ETPA.

b. Creation of “Exit Registration” forms and notices.

This new section provides for the service of appropriate notices on a tenant in an apartment alleged to be exempt from the ETPA because of high rent vacancy deregulation.

Greater transparency with respect to deregulation is appropriate in light of discrepancies among the registrations filed with high rent vacancy deregulation as the stated reason and the number of units simply failing to register but without explanation. Its use would have the salutary effect of providing information up front, reducing the potential need for administrative proceedings and/or investigation with respect to overcharge and improper deregulation claims.

c. Preferential Rent Review.

There exists a compelling need to adopt a new regulation which requires owners, in situations where a tenant is initially charged a preferential lesser rent and then charged a higher rent, to demonstrate the legitimacy of that higher rent.

Close to twenty-five percent of the rents in NYC and approximately twenty-six percent of the rents in the counties subject to the ETPA are listed in DHCR’s registration data-base as having preferential rents.

The present regulations contain incorrect legal standards. Further, courts have also acknowledged that the “4 year rule” gives way in areas where there is a continuing obligation to conform one’s conduct to standards created by other provisions of the Rent Stabilization Law.

The present rule of time limiting review to four years of preferential rent (regardless of when the higher rent was theoretically assumed to be proper, but never really established) places tenants in an untenable situation that discourages the exercise of their right to obtain a proper rent history.

d. Submetering costs and MCI eligibility.

This new provision properly recalibrates what equipment is MCI eligible with respect to submetering.

e. Enhanced DRIE and SCRIE Protections.

Since the last code review, the State of New York adopted a Disability Rent Increase Exemption (DRIE) for eligible low income disabled tenants similar to the existing Senior Citizen Rent Increase Exemption (SCRIE) available to the low income elderly.

DHCR regulations, which already prohibit the implementation of electrical submetering for SCRIE recipients, will be extended to disabled tenants receiving DRIE.

DHCR also is amending its regulations to exempt both SCRIE and DRIE tenants from the high income/high rent deregulation procedures set forth in the TPR as those tenancies have already been vetted through other government programs to have income far below that required for deregulation.

f. Lease Requirements and Enforcement.

DHCR data and experience shows that Individual Apartment Improvement (IAI) increases upon vacancy make up one of the largest components of increases under the ETPA. Paradoxically, a tenant may now only secure meaningful information or review of the propriety of these increases by filing an overcharge complaint before DHCR or a Court. Providing more information in the vacancy lease itself, as well as affording tenants the ability to demand supporting documentation directly from the owners without Court or DHCR intercession, will provide a cost effective alternative to such proceedings.

g. Codification of the overcharge “default formula”.

DHCR uses this kind of formula for setting rents where an owner fails to provide appropriate documentation to establish the legal rent in an overcharge proceeding or where there was an illusory prime tenancy or a fraudulent scheme to deregulate the housing accommodation.

However, the regulations, themselves, did not incorporate it.

h. Strengthening the process for service complaints.

The present regulation provides that tenants are required, prior to filing a service complaint with DHCR, to send a certified letter to the owner regarding the service deficiency.

More than a decade of implementation has led DHCR to the conclusion that the rule has often become a hurdle that suppresses the filing of complaints by the most vulnerable tenants.

The DHCR amendments also bar those parts of MCI increases slated for future collection, where there is a subsequently issued service reduction order. Precluding the collection of these future 6% MCI increments until an outstanding service deficiency is cured, is consistent with the ETPA, which bars collection of increases where there is a failure to provide services and will aid DHCR in incentivizing prompt restoration of services. In addition, an outstanding service reduction or immediately hazardous violation will bar the granting of an MCI application with the ability to re-file upon its prompt clearance.

Similarly, vacancy and longevity increases will no longer be allowed where there is an outstanding service reduction.

i. Deemed Leases.

A 2000 codification of the “deemed lease” rules apparently allowed owners to claim that they could extract the full rent from tenants for a new lease term where a tenant may have remained only for a short period prior to moving out. DHCR is returning to the more traditional and appropriate use of such “deemed leases” in overcharge proceedings.

j. Harassment Definition.

This regulation expands the definition of “harassment” to reflect some of the more up-to-date schemes to deprive tenants of their legitimate rights as rent stabilized tenants. Not every harassing act is designed to create a vacancy, but can include intimidating the tenant in place to preclude the legitimate exercise of such rights. These actions can include false and illegitimate filings before DHCR.

k. Codification of Certain Four Year Rule Exceptions.

These provisions seek to set forth, in one place, a more comprehensive list of areas where, to date, by statute, case law or regulation, the “four year rule” that ordinarily governs rent and overcharge review, has been held not to be applicable and changes to rules with respect to preferential rents and “vacancy on base date” cases.

The preferential rent change has already been explained. With claims of vacancies on the base date, it is more appropriate to test the validity of a present rent against these usual standards of overcharge review, rather than simply rubber-stamping any rent that is collected because of an alleged fortuity of a vacancy.

l. Amended registration.

DHCR has accepted for filing, amended registrations at any time for any year. These amendments, if treated similarly to “late” registrations under the ETPA could carry a substantial penalty, but no penalty has been imposed.

The number of such amendments is significant and has the effect of corrupting the purpose of DHCR’s registration data base as a contemporaneously created history of rents. Now such amendments, where appropriate, would be reviewed and regulated by DHCR.

DHCR is also amending the registration provisions to appropriately reflect DHCR’s authority and ability to change the registration forms themselves each year to capture data appropriate for the administration and enforcement of the ETPA and TPR.

m. Freeze of Vacancy Bonuses based on Failure to Register.

This change will conform DHCR’s practice to this statutory penalty for failing to properly register.

4. COSTS:

The regulated parties are tenants and owners. There are no additional direct costs. Costs by statute are proportionately borne by each municipality with ETPA units based on the number of units. Such costs may then be assessed by the municipality to the owner. However, DHCR has not sought to certify as municipal costs more than the $10 per unit cost which is the statutory cap for Rent Stabilized New York City units. The amended regulations do not impose any new responsibility upon state or local government. Owners will need to be initially more vigilant to assure their compliance with these changes, but such costs are already a generally-accepted expense of owning regulated housing. There are increased penalties in some instances if the regulations are violated, but the costs of conforming present business practices to the change in standards is not substantial. In addition, these consequences are largely consistent with existing case law or otherwise necessary to secure compliance. DHCR has made a significant effort to assure a safe harbor or alternatives from the more dire consequences for owners who are operating in good faith and in substantial compliance.

5. LOCAL GOVERNMENT MANDATES:

No new program, service, duty or responsibility is imposed on local government.

6. PAPERWORK:

The amendments may, in a limited fashion, increase the paperwork burden. There will be additional costs associated with filings and the need for additional record retention, but it is comparably minimal and is of a kind with already existing registrations and record keeping requirements.

Any particularized specific claims that a changed regulation may create hardship or inequity can and will be handled in the context of the administrative applications.

7. DUPLICATION:

No known duplication of State or Federal requirements except to the extent required by law.

8. ALTERNATIVES:

DHCR considered a variety of alternatives to many of these new rules. The alternative of continuing the rule presently in place for all of these changes was considered and rejected.

9. FEDERAL STANDARDS:

The proposed amendments do not exceed any known minimum Federal standards.

10. COMPLIANCE SCHEDULE:

It is not anticipated that regulated parties will require any significant additional time to comply with the proposed rules.

Regulatory Flexibility Analysis

1. EFFECT OF RULE:

The Emergency Tenant Protection Regulations (TPR) apply only to rent stabilized housing units located in those communities in Westchester, Rockland and Nassau Counties that are subject to the Emergency Tenant Protection Act. The class of small businesses affected by these proposed amendments would be limited to small building owners, those who own small numbers of rent stabilized units. The amended regulations would have limited burdensome impact on such small businesses. These amendments to the TPR apply only in the aforementioned communities, and are expected to have no impact on the local governments thereof.

2. COMPLIANCE REQUIREMENTS:

The proposed amendments would require small businesses that own regulated residential housing units to perform some minimal additional recordkeeping or reporting. Such businesses will continue to need to keep records of rent increases and improvements made to the properties in order to qualify for rent increases authorized under the proposed changes.

Further, such businesses will be required to provide a valid explanation for the need to amend registration statements already filed with DHCR. The proposed amendment of the registration statements must also be provided to the tenant in occupancy and would generally require the owner to provide DHCR an explanation of the need for such amendment.

In addition, small businesses will be required to produce rental records prior to the four year review of rental records in circumstances where there is a finding of a fraudulent scheme to deregulate an apartment; where there is a “preferential rent” in order to establish the terms and conditions of such preferential rent and whether it was previously established; and where an apartment was vacant or temporarily exempt on the base date. While these businesses may need to retain proof of the legality of rent for a longer period and produce such to DHCR, a prudent business owner would already have retained that information for these purposes already based on existing case law.

Businesses for a very limited time period will also be required to provide additional information directly to tenants with respect to explaining the propriety of IAI charges comprising the rent as a new lease. However, since the purpose of this is to cut down on rent overcharge proceedings before DHCR and the court, it may be ultimately more cost effective than waiting on administrative or judicial proceedings to supply the information.

3. PROFESSIONAL SERVICES:

The proposed amendments will not require small businesses to obtain any new or additional professional services.

4. COMPLIANCE COSTS:

There is no indication that the proposed amendments will impose any significant, initial costs upon small businesses. There are no additional direct costs. Costs by statute are proportionately borne by each municipality with ETPA units based on the number of units. Such costs may be assessed by the municipality to the owner. However, DHCR has not sought to certify as municipal costs more than the $10 per unit cost which is the statutory cap for Rent Stabilized New York City units. Small business owners of regulated housing accommodations will need to be initially more vigilant to assure their compliance with these changes. Compliance costs are already a generally-accepted expense of owning regulated housing. There are increased penalties in some instances if the regulations are violated, but the costs of conforming present business practices to the change in standards is not substantial. In addition, these consequences are largely consistent with existing case law or otherwise necessary to secure compliance. DHCR has made a significant effort to assure a safe harbor or alternatives from the more dire consequences for owners who are operating in good faith and in substantial compliance.

The additional costs need to be weighed against the actual outlay by owners leading to what DHCR is seeking to supervise by many of these changes: increases leading to the possible deregulation of units. Imposing rents that approach deregulation thresholds requires a significant outlay of funds on the part of owners. The median rent stabilized rent is $1,107 per month. The median stay of a rent stabilized tenant is 7 to 8 years based on DHCR’s review of turn over from its registration database. Thus adding the vacancy bonus and longevity increase to the median rent will result in a rent of $1,288 per month while the amount to deregulate an apartment is a rent of $2,500. This means an owner must increase the rent through individual apartment improvements through installation of improvements costing either $72,880 or $42,420 depending on the number of units in the building. This financial outlay stands in contrast to the median family income of a rent stabilized tenancy of $37,000 per year and mean family income of $51,357 per year as reported by New York City Rent Guidelines Board.

In the areas subject to the ETPA, the same analysis holds. The median ETPA rent for Nassau County is $1,281.38, for Rockland County it is $1,134.99 and for Westchester County it is $1,100.00. The median family income for renter families (including regulated and non-regulated rentals) in Nassau County is $47,618 per year, for Rockland County it is $41,705 per year and for Westchester County it is $40,609 as reported by the U.S. Census Bureau.

The amended regulations do not impose any new program, service, duty or responsibility upon any state agency or instrumentality thereof, or local government.

5. ECONOMIC AND TECHNOLGICAL FEASIBILITY:

Compliance is not anticipated to require any unusual, new or burdensome technological applications but ultimately encourages the use of “online” filings and use of DHCR forms, which are increasingly online, which will actually reduce costs.

6. MINIMIZING ADVERSE IMPACT:

The proposed regulations have no adverse impact on local government. They will have comparatively minimal costs to businesses considering that these changes are necessary to enforce a statute designed to protect the public health safety and welfare. The regulations being implemented do not create different regulatory standards for small businesses. Instead DHCR in the administrative proceedings themselves can take equitable circumstances into consideration which may include the size of the business. It is difficult, on a blanket regulatory basis, to make exceptions for small businesses. Outside of the proceedings themselves, it is difficult to ascertain the size of the business subject to these regulations as a single business may own multiple properties often created as single asset corporations. However, as set forth in the Regulatory Impact Statement, the new rules recognize a variety of mitigating circumstances, safe harbors and curative provisions so that an otherwise legally compliant owner suffers minimal or no penalties for a paperwork omission error. To the extent the approaches suggested in SAPA section 202-b are otherwise appropriate, present procedures take these into account.

7. SMALL BUSINESS AND LOCAL GOVERNMENT PARTICIPATION:

DHCR personnel within its Office of Rent Administration (ORA) engages in close to one hundred forums and meetings on an annual basis with community groups, owner and tenant advocacy organizations and local officials where the administration and implementation of these provisions was under discussion. In the last year this information gathering process has been enhanced through several additional actions taken by DHCR.

DHCR created the Tenant Protection Unit (TPU) a unit designated by the Commissioner to investigate and prosecute violations of the ETPA, the RSL and the City and State Rent Laws. TPU itself has met with the various stakeholders in an effort to ascertain what issues and concerns impinge on the owner and tenant community affected by these regulations.

Further, DHCR underwent the regulatory process for the promulgation of amendments expressly required by the Rent Law of 2011. That process generated significant comments on other issues relating to the rent regulations. ORA subsequently sent outreach letters to stakeholders, specifically including small businesses and their advocates, seeking comments and suggestions on changes to the regulations.

Rural Area Flexibility Analysis

The Emergency Tenant Protection Act applies only to rent stabilized housing units located in those communities in Westchester, Rockland and Nassau Counties that are subject to the Emergency Tenant Protection Act and therefore, the proposed rules will not impose any reporting, recordkeeping, or other compliance requirements on public or private entities located in any rural area pursuant to Subdivision 10 of SAPA Section 102.

Job Impact Statement

It is apparent from the text of the rules, required by statutory amendment, that there will be no adverse impact on jobs and employment opportunities by the promulgation of these regulations.