Insufficient Proof of Base Date Vacancy

Tenants complained of a rent overcharge. The DRA ruled for tenants and ordered landlord to refund $2,950, including interest and excess security. Tenants appealed, claiming that landlord had a history of overcharging other tenants by filing fraudulent apartment registrations and by failing to give tenants rent-stabilized leases when they moved in. They claimed that the DRA should have used its default procedure to set the base date rent because landlord didn’t submit a full rent history. Landlord claimed that tenant’s apartment was vacant on the base date, which was one month before it bought the building. Since tenants were the first tenants who moved into the apartment after the base date, their $1,495 rent was the legal rent.

The DHCR ruled for tenants and sent the case back to the DRA to determine the rent using the DHCR’s default procedure. The 2003 registration listing the apartment as vacant predated the base rent date, so it can’t be considered under the four-year rule. There was otherwise insufficient proof that the apartment was vacant on the base date. Some other tenants submitted sworn statements that a prior tenant lived in the apartment in 2003 and 2004, when it was presumably vacant. Con Ed records indicate that the apartment was occupied during this time, and there were inconsistencies in landlord’s own records concerning other apartments.

Manela: DHCR Adm. Rev. Docket No. XG410013RT (2/4/10) [4-pg. doc.]