Landlord's Roof Deck Fee to Rent-Stabilized Tenants Was Reduction in Required Services
LVT Number: #32402
Rent-stabilized tenant complained to the DHCR that landlord started imposing a service charge for roof deck access at its building even though this previously was a free amenity provided to all building tenants. The DRA ruled for tenant and reduced his rent based on a reduction in building-wide services.
Landlord appealed and lost. The DHCR noted that tenants had been able to use the roof for recreational purposes before landlord obtained a permit for roof renovations in 2018. Landlord sent tenants emails in early 2018 stating that the roof would be unavailable until further notice due to renovations. Previously there had been chairs on the roof since at least May 2017. Landlord's installation of a new roof deck in 2018 constituted a formal facility that was an ancillary service. Tenant's lease also stated that, "if owner permits you to use any storeroom, laundry or any other facility located in the building but outside the Apartment, the use of this storeroom or facility will be furnished to you free of charge and at your own risk, except for loss suffered by you due to owner's negligence." Landlord also failed to file the DRA's notice of tenant's complaint despite three separate notices requesting a response.
Landlord then filed an Article 78 court petition, claiming that the DHCR's decision was arbitrary and capricious. The court ruled against landlord. Landlord argued that discontinuance of roof use was a de minimis condition, so it wasn't a reduction in required services. But the DHCR rationally found that, since there were no former formal facilities involved, this wasn't a de minimis condition. Landlord also argued that "roof luxury amenity space did not exist on the base date." But landlord failed to answer DRA requests for additional information in response to the complaint. So landlord couldn't argue about the facts now. Landlord further argued that it was entitled to charge a modest fee for roof access services. But to do so, landlord was required to file an application with the DHCR for a modification or substitution of required services, and to obtain DHCR approval. Landlord hadn't done so here. The DHCR's decision was reasonable.
250 E. Hous. Invs. LP v. DHCR: Index No. 159503/2021, 2022 NY Slip Op 34165(U)(Sup. Ct. NY; 12/8/22; Perry, J)