Cooking Gas Not Required Service for Rent-Controlled Tenant

Rent-controlled tenant complained of a rent overcharge. She said that landlord had connected the building's hot-water heater to her gas meter, which measured her gas for cooking. Tenant claimed that she was now paying for hot water. Tenant showed a 1993 gas bill for $42 and a 2004 gas bill for $155 in support of her claim. Landlord claimed that tenant had paid for her hot water since landlord bought the building in 1997, that tenant agreed to this arrangement, that tenant must have installed the hot-water heater before landlord bought the building, and that tenant installed a washing machine and gas-fired dryer in her apartment without landlord's consent. The DRA ruled for tenant and set the MCR at $119 per month from 1972 to the present. The DRA also directed landlord to continue to provide for heat and hot water services and cooking gas to all tenants. Landlord appealed, arguing that the DRA ignored the DHCR's 2004-2005 MBR increase order. Landlord also claimed that hot water was provided to tenant's apartment separately and wasn't included in tenant's rent. Landlord also pointed out that tenant's original lease stated that cooking gas wasn't a required service. The DHCR ruled for landlord in part. There was no initial MBR order for the apartment. These orders generally were issued in 1972. Without an order setting the initial MBR, any later MBR increase order has no effect. So the DRA correctly froze tenant's rent. Landlord can apply for an order of MBR eligibility. If granted, landlord can collect rent increases in the future upon proper filings. As to heat and hot water, a prior DHCR order denied landlord's application to modify services and ordered landlord to provide heat and hot water. Landlord never appealed that decision, so landlord must provide heat and hot water to tenant. The prior order also ordered landlord to provide cooking gas. But the DHCR's records show that cooking fuel wasn't registered as a service in 1943, and was specifically excluded as a service in tenant's 1963 lease. So cooking gas wasn't an essential service. The DHCR's prior, mistaken, order on this issue was revoked.

DelPonte: DHCR Adm. Rev. Docket No. VH220052RO (2/1/08) [3-pg. doc.]