Tenant's Long-Term Fenced-In Roof Patio Wasn't a De Minimis Service

Landlord asked the DHCR for permission to modify services by eliminating a fenced-in private rooftop patio connected to rent-stabilized tenant's apartment. The DRA ruled for landlord on condition that landlord give tenant a $50 monthly rent reduction. Landlord appealed and lost. Landlord argued that no rent reduction was warranted. Landlord said that, despite removal of the fence, tenant still appeared to use the rooftop patio and still had the same full access to the rooftop that he'd always enjoyed. Landlord also argued that access to the garage roof was illegal and it was therefore not logical to grant a rent reduction. Landlord pointed out that DHCR police stated that recreational rooftop use was a de minimis service. But the DHCR had already issued rent reduction orders based on landlord's removal of the fence. Landlord was advised in the orders to either restore service or apply to the DHCR for service modification. The DHCR had no authority to lift a requirement by DOB concerning any safety concerns about the garage rooftop use by tenant and other building tenants. And, while DHCR policy stated that recreational rooftop use could be considered de minimis if there was no lease provision permitting it, here tenants had previously been granted long-term use of private rooftop patios by landlord. So the DRA properly determined that the service wasn't de minimis.

EDJ Realty: DHCR Adm. Rev. Docket No. HW610001RO (4/16/21) [3-pg. doc.]