By Eileen O’Toole, Esq., Contributing Editor
Owners of buildings subject to rent control and rent stabilization continue to wait for the DHCR to issue amended regulations even though proposed regulations were issued last summer and reviewed at public hearings in November 2022. Meanwhile, a federal appeals court has affirmed the denial of constitutional challenges filed by owners after HSTPA was enacted, finding no violations of the Fifth Amendment Takings Clause or the Fourteenth Amendment right to due process. It is anticipated that the plaintiff-owners will appeal these rulings before the U.S. Supreme Court. See CHIP v. City of New York (LVT #32483) and 74 Pinehurst LLC v. New York (LVT #32482).
Upstate, in Hudson Valley Property Owners Ass’n v. City of Kingston (LVT #32502), an Ulster County court upheld the City of Kingston’s 2022 adoption of the ETPA, finding the vacancy survey relied on by the city to be reasonable. However, the court agreed with owners that the city’s Rent Guidelines Board had violated the ETPA by ruling in November 2022 that all rent increases collected by landlords above 16 percent since Jan. 1, 2019, constituted rent overcharges and directing them to roll back such rents by 15 percent. The court vacated the RGB order. Both sides area appealing the court’s decision.
Movement by some owners away from the use of gas has fueled disputes over required services in rent-regulated buildings. In Matter of Newmann (LVT #32468), where the owner previously paid for cooking gas fuel in tenant apartments, the DHCR’s approval of landlord’s proposed required service modification to replace gas stoves with electric stoves included a permanent rent reduction to compensate tenants for the resulting increase in utility charges for the added electricity.
Procedural issues generated by the COVID-19 pandemic continue to pop up in housing court decisions. In July 2020, court memorandum CCM 210 directed that a petitioner-landlord could not follow the usual practice of inserting the initial court date on a notice of holdover petition filed in housing court but must file the notice with the petition and wait for the court to assign the initial court date. Since RPAPL §733(1) requires holdover petitions to be served on respondent-tenants at least 10 days but no more than 17 days before the return date, the result is that owners must remember to time the service of the notice of petition and holdover petition to reflect the court-assigned return date, which is often delayed from the time of filing. In the case of Audubon 27 LLC v. Perez (LVT #32493), premature filing resulted in dismissal for violating RPAPL §733(1). CCM 210 remains in place to date.
Court decisions on ERAP have seemingly decreased since the rental assistance program ended in January 2023, although in one recent decision, Elliot Place Props., Inc. v. Jaquez (LVT #32495), the court refused to vacate an ERAP stay where the tenant was subsidized under the Section 8 program and landlord pointed out that OTDA gave applications by rent-subsidized tenants the lowest processing priority.
