DHCR Prior Opinion on MCI Work Wasn't a Binding Order

The DRA granted landlord's MCI rent increase application based on repointing of the building facade. Tenants appealed and lost. Tenants claimed that landlord didn't comply with the terms of a DHCR prior opinion that landlord had obtained before performing the MCI. The prior opinion required landlord to submit a diagram of the work performed indicating those exposed sides of the building that were resurfaced, and to submit a contractor's statement that all exposed sides were examined prior to performing the work to determine that brick or masonry facing or stucco was necessary. But, tenants, argued, landlord didn't submit the required diagram with its MCI application and the submitted contractor's statement didn't state that all sides of the building were examined.

The DHCR ruled that the prior opinion, by definition, is not an order and was not binding. The prior opinion specifically stated that, "This is an advisory opinion that the work proposed by owner does constitute an MCI[.]" In addition, landlord's MCI application was for repointing of the facade and not resurfacing, as described in the prior opinion. Pointing and waterproofing "as necessary" on exposed sides of a building is an MCI for which rent increases may be granted. Landlord's MCI application also included a contractor's statement as to what was necessary and included photographs showing where the work was performed.

39 Walker Street RS Tenants Association: DHCR Adm. Rev. Docket No. AW410029RT (11/3/17) [2-pg. doc.]