(a) The administrator may order a decrease of
the maximum rent otherwise allowable, or take action as provided in section
2202.19 of this Part, where there
has been a substantial deterioration of the housing accommodations because of
the failure of the landlord to properly maintain the same, or there has been a
decrease in the dwelling space, essential services, furniture, furnishings or
equipment required under section
2201.2 of this Title. It shall be
no defense, to an application to decrease the maximum rent, that furniture or
furnishings were removed on or after May 1, 1955 from a furnished housing
accommodation with the consent of the tenant. The maximum rent for the housing
accommodation shall be decreased by that amount which the administrator finds
to be the reduction in the rental value of the housing accommodation because of
the substantial deterioration or decrease in dwelling space, essential
services, furniture, furnishings or equipment. The administrator may, however,
take into consideration all factors bearing on the equities involved.
(b) In any proceeding where the landlord has
complied with the requirements to paint and decorate the housing accommodation,
the order terminating this proceeding shall set forth the date when the
apartment shall again be due for a painting.
(c) The administrator may order a decrease of
the maximum rent, where there had been a previous increase of the maximum rent
on the basis of a prior tenant's installation or use of a television antenna,
and a new tenant has not availed himself of this service, by the amount of rent
increase formerly granted for such service; provided, however, that the present
tenant file an application for the decrease of the maximum rent within 90 days
from the date of taking possession of the housing accommodation.
(d) The administrator may order an
appropriate decrease of the maximum rent, where there has been a previous
increase of the maximum rent on the basis of the installation or use of cable
television services, and there is no lease or rental agreement, executed prior
to January 1, 1973 specifically providing for such installation or use,
presently in force, or such lease or rental agreement has terminated or
expired.
(e) the administrator may
order a decrease of the maximum rent based on an approved conversion from
master metering of electricity, with the cost of electricity included in the
rent, to individual metering of electricity, with the tenant paying separately
for electricity, and is in amounts set forth in a Schedule of Rent Reductions
for different-sized rent controlled housing accommodations included in
Operational Bulletin 2014-1 governing electrical conversions issued pursuant to
this section and section
2209.8 of this Title by DHCR, 92-31
Union Hall Street, Jamaica, Queens, New York, and available at DHCR's website
at
www.nyshcr.org (
www.hcr.ny.gov), and determined as follows:
(1) Direct Metering. Where the conversion is
to direct metering of electricity, with the tenant purchasing electricity
directly from a utility, such Schedule of Rent Reductions is based on the
median monthly cost of electricity to tenants derived from data from the United
States Census Bureau's " New York City Housing and Vacancy Survey," as
tabulated by the New York City Rent Guidelines Board, 1 Centre Street, Suite
2210, New York, New York, and available on its website at
rentguidelinesboard.cityofnewyork.us . The charge for electricity is not part
of the maximum rent and is not subject to this Subchapter. The resolution of
any dispute arising from the billing or collection of such charge is not within
the jurisdiction of the city rent agency. A conversion to direct metering is
required to include rewiring the building unless the owner can establish that
rewiring is unnecessary.
(2)
Submetering. Where the conversion is to submetering of electricity, with the
tenant purchasing electricity from the owner or a contractor retained by the
owner, who purchases electricity from a utility at the bulk rate, such Schedule
of Rent Reductions is based on the median monthly cost of electricity to
tenants derived from data from the United States Census Bureau's " New York
City Housing and Vacancy Survey," as tabulated by the New York City Rent
Guidelines Board, 1 Centre Street, Suite 2210, New York, New York, and
available on its website at rentguidelinesboard.cityofnewyork.us, adjusted to
reflect the bulk rate for electricity plus a reasonable service fee for the
cost of meter reading and billing, based on the maximum estimated fee included
in the Residential Electric Submetering Manual revised October 2001, published
by the New York State Energy Research and Development Authority, 17 Columbia
Circle, Albany, New York, and available on its website at
www.nyserda.org, and reflected in
Operational Bulletin 2014-1 . The owner or contractor retained by the owner is
not permitted to charge the tenant more than the bulk rate for electricity plus
a reasonable service charge for the cost of meter reading and billing. The
charge for electricity as well as any related service surcharge is not part of
the maximum rent and is not subject to this Subchapter. The resolution of any
dispute arising from the billing or collection of such charge or surcharge is
not within the jurisdiction of the city rent agency. A conversion to
submetering does not require rewiring the building provided the owner submits
an affidavit sworn to by a licensed electrician that the existing wiring is
safe and of sufficient capacity for the building.
(3) Recipients of Senior Citizen Rent
Increase Exemptions (SCRIE) or Disability Rent Increase Exemptions (DRIE): For
a tenant who on the date of the conversion is receiving a SCRIE or DRIE
authorized by section 26-405(m) of the City Rent and Rehabilitation Law, the
rent is not reduced and the cost of electricity remains included in the rent,
although the owner is permitted to install any equipment in such tenant's
housing accommodation as is required for effectuation of electrical conversion
pursuant to this subdivision.
(i) After the
conversion, upon the vacancy of the tenant, the owner, without making
application to the city rent agency, is required to reduce the maximum rent for
the housing accommodation in accordance with the Schedule of Rent Reductions
set forth in Operational Bulletin 2014-1, and thereafter any subsequent tenant
is responsible for the cost of his or her consumption of electricity, and for
the legal rent as reduced, including any applicable major capital improvement
rent increase based upon the cost of work done to effectuate the electrical
conversion.
(ii) After the
conversion, if a tenant ceases to receive a SCRIE or DRIE, the owner, without
making application to the city rent agency, may reduce the rent in accordance
with the Schedule of Rent Reductions set forth in Operational Bulletin 2014-1,
and thereafter the tenant is responsible for the cost of his or her consumption
of electricity, and for the legal rent as reduced, including any applicable
major capital improvement rent increase based upon the cost of work done to
effectuate the electrical conversion, for as long as the tenant is not
receiving a SCRIE or DRIE. Thereafter, in the event that the tenant resumes
receiving a SCRIE or DRIE, the owner, without making application to the city
rent agency, is required to eliminate the rent reduction and resume
responsibility for the tenant's electric bills.
(4) Every three years, upon the publication
of a new New York City Housing and Vacancy Survey, and tabulation of the survey
data by the New York City Rent Guidelines Board, DHCR shall issue a new
Operational Bulletin governing electrical conversions setting forth rent
reductions based on the new survey data, and shall move to amend the
regulations to incorporate by reference the new Operational Bulletin, the new
New York City Housing and Vacancy Survey, and Rent guidelines Board tabulation.
At such time as New York State Energy Research and Development Authority issues
a new Residential Electric Submetering Manual setting forth a new maximum
estimated submetering service fee, DHCR shall move to amend the regulations to
incorporate that document by reference.
(f) The amount of the reduction in maximum
rent ordered by the administrator pursuant to this section shall be reduced by
any credit, abatement or offset in rent which the tenant has received pursuant
to section
235-b of
the Real Property Law, that relates to one or more conditions covered by such
order.
(g)
(1) Certain conditions complained of as
constituting a substantial deterioration of a housing accommodation because of
a reduction in an essential service may be de minimis in nature, and therefore
do not rise to the level of a failure to maintain an essential service for the
purposes of this section. Such conditions are those that have only a minimal
impact on tenants, do not affect the use and enjoyment of the premises, and may
exist despite regular maintenance of services.
The following schedule sets forth conditions that will
generally not constitute a failure to maintain an essential service. However,
this schedule is not intended to be exclusive, and is not determinative in all
cases and under all circumstances. Therefore, it does not include all
conditions that may be considered de minimis, and there may be circumstances
where a condition, although included on the schedule, will nevertheless be
found to constitute a decrease in an essential service.
SCHEDULE OF DE MINIMIS CONDITIONS
BUILDING-WIDE CONDITIONS
1. AIR CONDITIONING:
Failure to provide in lobby, hallways, stairwells, and
other non-enclosed public areas.
2. BUILDING ENTRANCE DOOR:
Removal of canopy over unlocked door leading to
vestibule; changes in door-locking devices, where security or access is not
otherwise compromised.
3.
CARPETING:
Change in color or quality under certain circumstances;
isolated stains on otherwise clean carpets; frayed areas which do not create a
tripping hazard.
4.
CLOTHESLINES:
Removal of, whether or not dryers are provided.
5. CRACKS:
Sidewalk cracks which do not create a tripping hazard;
hairline cracks in walls and ceilings.
6. DECORATIVE AMENITIES:
Modification (e.g., fountain replaced with rock garden);
removal of some or all for aesthetic reasons.
7. ELEVATOR:
Failure to post elevator inspection certificates; failure
to provide or maintain amenities (e.g., ashtray, fan, recorded music).
8. FLOORS:
Failure to wax floors; discrete areas in need of cleaning
or dusting, where there is evidence that janitorial services are being
regularly provided and most areas are clean (See JANITORIAL SERVICES, item
12).
9. GARAGE:
Any condition that does not interfere with the use of the
garage or an assigned parking space (e.g., peeling paint where there is no
water leak).
10. GRAFFITI:
Minor graffiti inside the building; any graffiti outside
the building where the landlord submits an "affidavit of on-going maintenance"
indicating a reasonable time period when the specific condition will be next
addressed.
11. LANDSCAPING:
Modification; failure to maintain a particular aspect of
landscaping where the grounds are generally maintained.
12. JANITORIAL SERVICES:
Failure to clean or dust discrete areas, where there is
evidence that janitorial services are being regularly provided because most
areas are, in fact, clean.
13. LIGHTING IN PUBLIC AREAS:
Missing light bulbs where the lighting is otherwise
adequate.
14. LOBBY OR
HALLWAYS:
Discontinuance of fresh cut flowers; removal of fireplace
or fireplace andirons; modification of furniture; removal of some furnishings
(determined on a case by case basis); removal of decorative mirrors; reduction
in lobby space where reasonable access to tenant areas are maintained;
elimination of public area door mat; failure to maintain a lobby directory that
is not associated with a building intercom; removal or replacement of window
coverings (See DECORATIVE AMENITIES, item 6).
15. MAIL DISTRIBUTION:
Elimination of door-to-door or other methods of mail
distribution where mailboxes are installed in a manner approved by the U.S.
Postal Service.
16.
MASONRY:
Minor deterioration; failure to point exterior bricks
where there is no interior leak damage.
17. PAINTING:
Change in color in public areas under certain
circumstances (e.g., not in violation of the New York City Housing Maintenance
Code); replacement of wallpaper or stenciling with paint in the public areas;
isolated or minor areas where paint or plaster is peeling, or other similarly
minor areas requiring repainting, provided there are no active water leaks; any
painting condition in basement or cellar areas not usually meant for or used by
tenants; any painting condition that is limited to the top-floor bulkhead area
provided there is no active water leak in such area.
18. RECREATIONAL FACILITIES:
Modifications, such as reasonable substitution of
equipment, combination of areas, or reduction in the number of items of certain
equipment where overall facilities are maintained (See ROOF, item 19).
19. ROOF:
Discontinuance of recreational use (e.g., sunbathing)
unless a lease clause provides for such service, or formal facilities (e.g.,
solarium) are provided by the landlord; lack of repairs where water does not
leak into the building or the condition is not dangerous.
20. SINKS:
Failure to provide or maintain in compactor rooms or
laundry rooms.
21. STORAGE
SPACE:
Removal or reduction of, unless storage space service is
provided for in a specific rider to the lease (not a general clause in a
standard form residential lease), or unless the landlord has provided formal
storage boxes or bins to tenants within three years of the filing of a tenant's
complaint alleging an elimination or a reduction in storage space
service.
22. SUPERINTENDENT
MAINTENANCE STAFF MANAGEMENT:
Decrease in the number of staff, other than security,
provided there is no decrease in janitorial services; elimination of on-site
management office; failure to provide an on-site superintendent, provided there
is no decrease in janitorial services.
23. TELEVISION:
Replacement of individual antennas with master antenna;
visible cable; television wires; or other technologies.
24. TOILET IN PUBLIC AREAS:
Removal of (except in buildings containing Class B
units).
25. WINDOWS:
Sealed, vented, basement or crawl space windows, other
than in areas used by tenants (e.g., laundry rooms); cracked fire-rated
windows; peeling paint or other non-hazardous condition of exterior window
frames.
INDIVIDUAL APARTMENT CONDITIONS
1. APPLIANCES AND FIXTURES:
Chips on appliances, countertops, fixtures or tile
surfaces; color-matching of appliances, fixtures or tiles.
2. CRACKS:
Hairline cracks; minor wall cracks, provided there is no
missing plaster, or no active water leak.
3. DOORS:
Lack of alignment, provided condition does not prevent
proper locking of entrance door or closing of interior door.
4. FLOOR:
Failure to provide refinishing or shellacking.
5. NOISE:
Caused by another tenant.
6. WINDOW FURNISHINGS:
Failure to re-tape or re-cord venetian blinds.
(2) In
determining whether a condition is de minimis, the administrator may consider
the passage of time during which a disputed service was not provided and during
which no complaint was filed by any tenant alleging failure to maintain such
disputed service, as evidencing that such service condition is de minimis, and
therefore does not constitute a failure to maintain an essential service,
provided that:
(i) for purposes of this
subdivision, the passage of four years or more shall be considered presumptive
evidence that the condition is de minimis, with such four-year period to be
measured without reference to any changes in building ownership or the tenancy
of the subject housing accommodation;
(ii) services required to be provided by laws
or regulations other than the Rent Law and this Subchapter shall not be subject
to this subdivision.
(3)
(i) Except as to complaints of inadequate
heat and/or hot water, or applications relating to the restoration of rents
based upon the restoration of such services, whenever a complaint of
building-wide reduction in services, or a landlord's application relating to
the restoration of rents based upon the restoration of such services is filed,
the tenants or landlord may submit with the complaint, answer or application,
the contemporaneous affidavit of an independent licensed architect or engineer,
substantiating the allegations of the complaint, answer, or application. The
affidavit shall state that the conditions that are the subject of the
complaint, answer or application were investigated by the person signing the
affidavit and that the conditions exist (if the affidavit is offered by the
tenants) or do not exist (if the affidavit is offered by the landlord). The
affidavit shall specify what conditions were investigated and what the findings
were with respect to each condition. The affidavit shall state when the
investigation was conducted, must be submitted within a reasonable time after
the completion of the investigation, and when served by the administrator on
the opposing party, will raise a rebuttal presumption that the conditions that
are the subject of the complaint, answer or application exist (if the affidavit
is submitted by the tenants), or do not exist (if the affidavit is submitted by
the landlord).
(ii) The presumption
raised by the affidavit may be rebutted only on the basis of persuasive
evidence, including a counter affidavit by an independent licensed architect or
engineer, or a report of a subsequent inspection conducted, or a subsequent
violation imposed by a governmental agency, or an affirmation signed by 51
percent of the complaining tenants. Except for good cause shown, failure to
rebut the presumption within 30 days will result in the issuance of an order
without any further physical inspection of the premises by the
administrator.
(iii) There must be
no common ownership, or other financial interest, between such architect or
engineer, and the landlord or tenants, and the affidavit shall state that there
is no such relationship or other financial interest. The affidavit must also
contain a statement that the architect or engineer did not engage in the
performance of any work, other than the investigation, relating to the
conditions that are the subject of the affidavit, and must contain the original
signature and professional stamp of the architect or engineer, not a copy. The
administrator may conduct follow-up inspections randomly to ensure that the
affidavits accurately indicate the conditions of the premises. Any person or
party who submits a false statement will be subject to all penalties provided
by law.