Subchapter A of Chapter VIII of Subtitle S of Title 9 NYCRR

The Emergency Tenant Protection Regulations as promulgated and adopted by the Division of Housing and Community Renewal pursuant to the Emergency Tenant Protection Act of Nineteen Seventy-four, section 4 of Chap. 576, Laws of 1974, section 10(a), as amended, are amended to read as follows:

Section 1

Section 2500.1 of this Part is amended to read as follows:

Section 2500.1 Statutory authority.

This [Chapter] Subchapter is adopted and promulgated pursuant to the powers granted to the State Division of Housing and Community Renewal by the Emergency Tenant Protection Act of Nineteen Seventy-four, Chapter 576 of the Laws of New York for the year 1974, as amended. As used in this [Chapter] Subchapter, the term "act" shall mean the Emergency Tenant Protection Act of Nineteen Seventy-four. Wherever the term "Chapter" is used hereinafter to describe these regulations, it shall be deemed to mean "Subchapter."

Section 2

Subdivision (d) of section 2500.2 of this Part is repealed, and a new subdivision (d) is adopted to read as follows:

(d) Rent. Consideration, charge, fee or other thing of value, including any bonus, benefit or gratuity demanded or received for, or in connection with, the use or occupation of housing accommodations or the transfer of a lease for such housing accommodations. Rent shall not include surcharges authorized pursuant to section 2502.9 of this Title.

Section 3

Subdivision (e) of section 2500.2 of this Part is repealed, and a new subdivision (e) is adopted to read as follows:

(e) Legal regulated rent. The rent charged on the base date set forth in subdivision (q) of this section, plus any subsequent lawful increases and adjustments.

Section 4

Subdivision (g) of section 2500.2 of this Part is repealed, and a new subdivision (g) is adopted to read as follows:

(g) Owner. A landlord, fee owner, lessor, sublessor, assignee, net lessee, or a proprietary lessee of a housing accommodation in a structure or premises owned by a cooperative corporation or condominium association, or an owner of a condominium unit or the sponsor of such cooperative corporation or condominium association or development, or any other person or entity receiving or entitled to receive rent for the use or occupation of any housing accommodation, or an agent of any of the foregoing, but such agent shall only commence a proceeding pursuant to sections 2504.4(b) and (c) of this Title, in the name of such foregoing principals. Any separate entity that is owned, in whole or in part, by an entity that is considered an owner pursuant to this subdivision, and which provides only utility services shall itself not be considered an owner pursuant to this Subchapter. Wherever the term landlord is used hereinafter in this Subchapter, it shall be deemed to mean owner. Except as is otherwise provided in sections 2502.3 and 2506.1(f) of this Title, a court-appointed Receiver shall be considered an owner pursuant to this Subchapter.

Section 5

Subdivision (i) of section 2500.2 of this Part is amended to read as follows:

(i) Documents. Records, books, accounts, correspondence, memoranda and other documents, and [drafts and] copies, including microphotographic or electronically stored or transmitted copies, of any of the foregoing.

Section 6

Subdivision (l) of section 2500.2 of this Part is repealed, and a new subdivision (l) is adopted to read as follows:

(l) Final order. A final order shall be an order of a Rent Administrator not appealed to the Commissioner within the period authorized pursuant to section 2510.2 of this Title, or an order of the commissioner, unless such order remands the proceeding for further consideration.

Section 7

Subdivision (m) of section 2500.2 of this Part is repealed, and a new subdivision (m) is adopted to read as follows:

(m) Immediate family. A husband, wife, son, daughter, stepson, stepdaughter, father, mother, stepfather, stepmother, brother, sister, grandfather, grandmother, grandson, granddaughter, father-in-law, mother-in-law, son-in-law or daughter-in-law of the owner.

Section 8

Paragraph (1) of subdivision (n) of section 2500.2 of this Part is repealed, and a new paragraph (1) is adopted to read as follows:

(1) A husband, wife, son, daughter, Stepson, stepdaughter, father, mother, stepfather, stepmother, brother, sister, grandfather, grandmother, grandson, granddaughter, father-in-law, mother-in-law, son-in-law or daughter-in-law of the tenant; or

Section 9

A new subdivision (q) of section 2500.2 of this Part is adopted to read as follows:

(q) Base date. For the purposes of proceedings pursuant to sections 2502.3(a) and 2506.1 of this Title, "base date" shall mean the date which is the most recent of:

1. The date four years prior to the date of the filing of such appeal or complaint; or



2. The date on which the housing accommodation first became subject to the act; or



3. April 1, 1984, for complaints filed on or before March 31, 1988 for housing accommodations for which initial registrations were required to be filed by June 30, 1984, and for which a timely challenge was not filed.

Section 10

A new subdivision (r) of section 2500.2 of this Part is adopted to read as follows:

(r) Primary residence. Although no single factor shall be solely determinative, evidence which may be considered in determining whether a housing accommodation subject to this Subchapter is occupied as a primary residence shall include, without limitation, such factors as listed below:

1. Specification by an occupant of an address other than such housing accommodation as a place of residence on any tax return, motor vehicle registration, driver's license or other document filed with a public agency;



2. Use by an occupant of an address other than such housing accommodation as a voting address;



3. Occupancy of the housing accommodation for an aggregate of less than 183 days in the most recent calendar year, except for temporary periods of relocation pursuant to section 2503.5(d)(2) of this Title;



4. Subletting of the housing accommodation.

Section 11

Section 2500.6 of this Part is amended to read as follows:

2500.6 Filing of amendments.

Such amendment or revocation shall be filed with the Secretary of State and shall take effect upon the date of filing unless otherwise specified therein or as otherwise provided by the State Administrative Procedure Act. Where implementation of a provision would require new or significantly revised filing procedures or notice requirements, the division may postpone implementation of such provision, as required, for up to 180 days after the effective date of such amendment or revocation, by an advisory opinion issued pursuant to section 2507.11 of this Title, which shall be available to the public on such effective date. Where such postponement is deemed necessary, current filing procedures, notice requirements, or forms, if any, may be utilized until revision thereof.

Section 12

Section 2500.8 of this Part is amended to read as follows:

2500.8 Local areas subject to control. Except as hereinafter provided in section 2500.9 of this Part, [these regulations] this Subchapter shall apply to housing accommodations located in the counties of Nassau, Rockland, and Westchester, which are subject to the Emergency Tenant Protection Act of 1974 pursuant to a determination of the existence of an emergency thereunder by the local legislative body of the city, town or village wherein the accommodations are situated. [Notwithstanding the above, until the Rent Stabilization Code and Hotel Stabilization Code applicable to New York City are amended to implement the provisions of chapters 102, 439 and 940 of the Laws of 1984 and chapter 403 of the Laws of 1983, sections 2502.4(d), 2502.5(c)(9), 2504.4(d) except as to the filing requirements, 2505.7, 2506.1, 2506.2(c), 2507 through 2510 of these regulations shall also apply to those housing accommodations subject to the provisions of title YY of the Administrative Code of the City of New York.]

Section 13

Paragraph (1) of subdivision (d) of section 2500.9 of this Part is amended to read as follows:

(d)(1) housing accommodations in a building containing fewer than six dwelling units, or fewer than such other, larger threshold number of units as the local legislative body, in its determination of emergency as specified in section 2500.8 of this Part, may have chosen;

Section 14

Subdivision (e) of section 2500.9 of this Part is amended to read as follows:

(e) housing accommodations in buildings completed or buildings substantially rehabilitated as family units on or after January 1, 1974, except such buildings which are made subject to this Subchapter by provision of the act or any other statute that meet the following criteria, which at the division's discretion, may be effectuated by Operational Bulletin:

1. a specified percentage, not to exceed 75% of listed building-wide and apartment systems, must have been replaced;



2. for good cause shown, exceptions to the criteria stated herein or effectuated by Operational Bulletin, regarding the extent of the rehabilitation work required to be effectuated building-wide or as to individual housing accommodations, may be granted where the owner demonstrates that a particular component of the building or system has recently been installed or upgraded, or is structurally sound and does not require replacement, or that the preservation of a particular component is desirable or required by law due to its aesthetic or historic merit;



3. the rehabilitation must have been commenced in a building that was in a substandard or seriously deteriorated condition. The extent to which the building was vacant of residential tenants when the rehabilitation was commenced shall constitute evidence of whether the building was in fact in such condition. Where the rehabilitation was commenced in a building in which at least 80% of the housing accommodations were vacant of residential tenants, there shall be a presumption that the building was substandard or seriously deteriorated at that time. Space converted from non-residential use to residential use shall not be required to have been in substandard or seriously deteriorated condition for there to be a finding that the building has been substantially rehabilitated;



4. except in the case of extenuating circumstances, the division will not find the building to have been in a substandard or seriously deteriorated condition where it can be established that the owner has attempted to secure a vacancy by an act of arson resulting in criminal conviction of the owner or the owner's agent, or the division has made a finding of harassment, as defined pursuant to any applicable rent regulatory law, code or regulation;



5. in order for there to be a finding of substantial rehabilitation, all building systems must comply with all applicable building codes and requirements, and the owner must submit copies of the building's certificate of occupancy, if such certificate is required by law, before and after the rehabilitation;



6. where occupied rent regulated housing accommodations have not been rehabilitated, such housing accommodations shall remain regulated until vacated, notwithstanding a finding that the remainder of the building has been substantially rehabilitated, and therefore qualifies for exemption from regulation;



7. where, because of the existence of hazardous conditions in his or her housing accommodation, a tenant has been ordered by a governmental agency to vacate such housing accommodation, and the tenant has received a court order or an order of the division that provides for payment by the tenant of a nominal rental amount while the vacate order is in effect, and permits the tenant to resume occupancy without interruption of the rent stabilized status of the housing accommodation upon restoration of the housing accommodation to a habitable condition, such housing accommodation will be excepted from any finding of substantial rehabilitation otherwise applicable to the building. However, the exemption from rent regulation based upon substantial rehabilitation will apply to a housing accommodation that is subject to a right of reoccupancy, if the returning tenant subsequently vacates, or if the tenant who is entitled to return pursuant to court or division order chooses not to do so;



8. an owner may apply to the division for an advisory prior opinion that the building will qualify for exemption from rent regulation on the basis of substantial rehabilitation, based upon the owner's rehabilitation plan;



9. specified documentation will be required from an owner in support of a claim of substantial rehabilitation;

Section 15

Subdivision (f) of section 2500.9 of this Part is amended to read as follows:

(f) housing accommodations owned [or], operated, or leased or rented pursuant to governmental funding, by a hospital, convent, monastery, asylum, public institution, or college or school dormitory or any institution operated exclusively for charitable or educational purposes on a nonprofit basis, other than accommodations occupied by a tenant on the date such housing accommodation is acquired by such institution, or which are occupied subsequently by a tenant [who is not affiliated with such institution at the time of his initial occupancy] whose initial occupancy is not contingent upon an affiliation with such institution. However, a housing accommodation occupied by a non-affiliated tenant shall be subject to this Subchapter;

Section 16

Subdivision (k) of section 2500.9 of this Part is amended to read as follows:

(k) housing accommodations which are not occupied by the tenant in possession as his primary residence[.];

Section 17

A new subdivision (l) of section 2500.9 of this Part is adopted to read as follows:

(l) housing accommodations contained in buildings owned as cooperatives or condominiums, which are or become vacant on or after July 7, 1993, except that this subdivision shall not apply to units occupied by non-purchasing tenants under section 352-eee of the General Business Law until the occurrence of a vacancy:

(l) provided, however, and subject to the limitations set forth in subdivision (e) of this section, that:

(i) where cooperative or condominium ownership of such building no longer exists ("deconversion"), because the cooperative corporation or condominium association loses title to the building upon a foreclosure of the underlying mortgage or otherwise, or where the conversion of the building to cooperative or condominium ownership is revoked retroactively by the New York State Attorney General to the date immediately prior to the effective date of the Conversion Plan on the basis of fraud or on other grounds, such housing accommodations shall revert to regulation pursuant to the act and this Subchapter, and the regulated rents therefor shall be as follows:

(a) Housing accommodations not occupied at the time of deconversion.

(1) Where deconversion occurs four years or more after the effective date of the Conversion Plan, the initial regulated rent shall be as agreed upon by the parties and reserved in a vacancy lease.

(2) Where deconversion occurs within four years after the effective date of the Conversion Plan, the initial regulated rent shall be the most recent legal regulated rent for the housing accommodation increased by all lawful adjustments that would have been permitted had the housing accommodation been continuously subject to the act and this Subchapter.

(3)(i) Where the rent, as agreed upon by the parties and paid by the tenant is $2,000 or more per month, pursuant to subdivision (m) of this section, such accommodation and the rent therefor shall not revert to regulation under this Subchapter.

(ii) Initial regulated rents established pursuant to subclause (1) of this clause (a) shall not be subject to challenge under section 2506.1(a)(2)(ii) of this Title.

(4)(i) Within 30 days after deconversion, the new owner taking title upon deconversion shall offer a vacancy lease, at an initial regulated rent established pursuant to this clause (a), to the holder of shares formerly allocated to the housing accommodation in the case of cooperative ownership, or the former unit owner in the case of condominium ownership. Such shareholder or former unit owner shall have 30 days to accept such offer by entering into the vacancy lease. Failure to enter into such lease shall be deemed to constitute a surrender of all rights to the housing accommodation.

(ii) This subclause (4) shall not apply where deconversion was caused, in whole or in part, by a violation of any material term of the proprietary lease by the shareholder or former unit owner.

(iii) No individual former owner or proprietary lessee shall be entitled to occupy more than one housing accommodation.

(b) Housing accommodations occupied at the time of deconversion and not subject to regulation under this Subchapter at such time.

(1) Where the housing accommodation is occupied by a holder of shares formerly allocated to it in the case of cooperative ownership, or by the former owner of such unit in the case of condominium ownership, such shareholder or former unit owner shall be offered a new vacancy lease, subject to regulation under this Subchapter, by the new owner taking title upon deconversion, which lease shall be subject to all of the terms and conditions set forth in subparagraph (i) of this paragraph (1) pertaining to the establishment of initial regulated rents, lease offer, and deregulation, including item (ii) of subclause (4) of clause (a) of this subparagraph.

(2) Where the housing accommodation is occupied by a current renter pursuant to a sublease with the holder of shares formerly allocated to it in the case of cooperative ownership, or to the former owner of such unit in the case of condominium ownership, the new owner shall offer a vacancy lease to such holder of shares or former unit owner pursuant to all of the terms and conditions set forth in subparagraph (i) of this paragraph (1).

(3) All shareholders or former unit owners described in this clause (b) shall be offered a vacancy lease within 30 days after the deconversion, and shall have 30 days to accept such offer. However, in the event such shareholder or former unit owner does not enter into the vacancy lease, he or she shall be deemed to have surrendered all rights to the housing accommodation effective 120 days after the deconversion.

(c) Housing accommodations occupied pursuant to regulation under this Subchapter or the State Rent and Eviction Regulations by non-purchasing tenants immediately prior to deconversion.

The regulated rents for such housing accommodations shall not be affected by the deconversion, and such accommodations shall remain fully subject to all provisions of this Subchapter or the State Rent and Eviction Regulations, whichever is applicable.

(d)(1) Where it determines that the owner taking title at deconversion caused, in whole or in part, the deconversion to occur, the initial legal regulated rent shall be established by the division pursuant to sections 2502.3(b) and 2502.6 of this Title. In such cases, if the rent so established and paid is $2,000 or more per month, subdivision (m) of this section shall not apply.

(2) Upon deconversion, housing accommodations in localities subject to this Subchapter which were last subject to regulation pursuant to the State Rent and Eviction Regulations shall become subject to regulation under this Subchapter pursuant to this paragraph (1). In such cases, the initial legal regulated rent shall be established by the division pursuant to sections 2502.3(b) and 2502.6 of this Title.

(2) Housing accommodations that were subject to regulation under this Subchapter or the State Rent and Eviction Regulations immediately prior to conversion to cooperative or condominium ownership by virtue of the receipt of tax benefits pursuant to applicable law shall revert to regulation under this Subchapter pursuant to paragraph (1) of this subdivision only for such period of time as is required by such applicable law;

Section 18

A new subdivision (m) of section 2500.9 of this Part is adopted to read as follows:

(m) housing accommodations which:

1. became or become vacant on or after July 7, 1993 where, at any time between July 7, 1993 and October 1, 1993, inclusive, the legal regulated rent was two thousand dollars or more per month; or



2. became or become vacant on or after June 19, 1997, with a legal regulated rent of two thousand dollars or more per month;



3. exemption pursuant to this subdivision shall not apply to housing accommodations which became or become subject to the act and this Subchapter solely by virtue of the receipt of tax benefits pursuant to section 489 of the Real Property Tax Law.



4. exemption pursuant to this subdivision shall not apply to or become effective with respect to housing accommodations for which the commissioner determines or finds that the owner or any person acting on his or her behalf, with intent to cause the tenant to vacate, engaged in any course of conduct (including, but not limited to, interruption or discontinuance of required services) which interfered with or disturbed or was intended to interfere with or disturb the comfort, repose, peace or quiet of the tenant in his or her use or occupancy of the housing accommodations. In connection with such course of conduct, any other general enforcement provision of the act and this Subchapter shall also apply;



5. during the period of effectiveness of an order issued pursuant to section 2503.4 of this Title for failure to maintain essential services, which lowers the legal regulated rent below two thousand dollars per month during the time period specified in this subdivision, a vacancy shall not qualify the housing accommodation for exemption under this subdivision;



6. where an owner installs new equipment or makes improvements to the individual housing accommodation qualifying for a rent increase pursuant to subparagraph (i) of paragraph (3) of subdivision (a) of section 2502.4 of this Title, while such housing accommodation is vacant, and where the legal regulated rent is raised on the basis of such rent increase, or as a result of any rent increase permitted upon vacancy or succession as provided in section 2502.7 of this Title, or by a combination of rent increases, as applicable, to a level of two thousand dollars per month or more, whether or not the next tenant in occupancy actually is charged or pays two thousand dollars per month or more for rental of the housing accommodation, the housing accommodation will qualify for exemption under this subdivision;



7. where, pursuant to section 2501.2 of this Title, a legal regulated rent is established by record within four years prior thereto, and a rent lower than such legal regulated rent is charged and paid by the tenant, and where, pursuant to such section, upon the vacancy of such tenant, a legal regulated rent previously established by record within four years prior thereto, as lawfully adjusted pursuant to the act or this Subchapter, may be charged, and where such previously established legal regulated rent, as so adjusted, is two thousand dollars or more per month, such vacancy shall qualify the housing accommodation for exemption under this subdivision;



8. where an owner substantially alters the outer dimensions of a vacant housing accommodation which qualifies for a first rent of $2,000 or more per month, exemption pursuant to this subdivision shall apply.

Section 19

A new subdivision (n) of section 2500.9 of this Part is adopted to read as follows:

(n) upon the issuance of an order by the division pursuant to the procedures set forth in Part 2511 of this Title, including orders resulting from default, housing accommodations which:

1. have a legal regulated rent of two thousand dollars or more per month as of October 1, 1993, or as of any date on or after June 19, 1997, and which are occupied by persons who had a total annual income in excess of two hundred fifty thousand dollars per annum for each of the two preceding calendar years, where the first of such two preceding calendar years is 1992 through 1995 inclusive, and in excess of one hundred seventy-five thousand dollars, where the first of such two preceding calendar years is 1996 or later, with total annual income being defined in and subject to the limitations and process set forth in Part 2511 of this Title;



2. exemption pursuant to this subdivision shall not apply to housing accommodations which became or become subject to the act and this Subchapter solely by virtue of the receipt of tax benefits pursuant to section 489 of the Real Property Tax Law;



3. in determining whether the legal regulated rent for a housing accommodation is two thousand dollars per month or more, the standards set forth in subdivision (m) shall be applicable; to be eligible for exemption under this subdivision, the legal regulated rent must continuously be two thousand dollars or more per month from the owner's service of the income certification form provided for in section 2511.2 of this Title upon the tenant to the issuance of an order deregulating the housing accommodation.

Section 20

A new subdivision (o) of section 2500.9 of this Part is adopted to read as follows:

(o) housing accommodations occupied by domestic servants, superintendents, caretakers, managers or other employees to whom the space is provided as part or all of their compensation without payment of rent and who are employed for the purpose of rendering services in connection with the premises of which the housing accommodation is a part;

Section 21

A new subdivision (p) of section 2500.9 of this Part is adopted to read as follows:

(p) housing accommodations used exclusively for professional, commercial, or other nonresidential purposes;

Section 22

A new subdivision (q) of section 2500.9 of this Part is adopted to read as follows:

(q) housing accommodations in buildings completed or substantially rehabilitated as family units on or after January 1, 1974 or located in a building containing less than six housing accommodations, or fewer than such other, larger threshold number of units as the local legislative body, in its determination of emergency as specified in section 2500.8 of this Part, may have chosen, and which were originally made subject to regulation solely as a condition of receiving tax benefits pursuant to section 421-c of the Real Property Tax Law, as amended, and a period of ten years has passed;

Section 23

A new subdivision (r) of section 2500.9 of this Part is adopted to read as follows:

(r) housing accommodations exempted pursuant to any other provision of law.

Section 24

Section 2500.11 of this Part is repealed and a new section 2500.11 is adopted to read as follows:

Section 2500.11 Receipt for rent paid.

Owners shall comply with the provisions of section 235-e of the Real Property Law.

Section 25

Section 2500.12 of this Part is amended to read as follows:

2500.12 Waiver of benefit void.

An agreement by the tenant to waive the benefit of any provision of the act or this [Chapter] Subchapter is void; provided, however, that based upon a negotiated settlement between the parties and with the approval of the division, or a court of competent jurisdiction, or where a tenant is represented by counsel, a tenant may withdraw, with prejudice, any complaint pending before the division. Such settlement shall be binding upon subsequent tenants. However, where the settlement encompasses surrender of occupancy by the tenant or the tenant is no longer in possession of the housing accommodation as of the date of the settlement, such settlement shall not be binding upon any subsequent tenant, except to the extent that the complaint being settled is subject to the time limitations set forth in the act and this Subchapter.

Section 26

A new section 2500.13 of this Part is adopted to read as follows:

2500.13 Construction and implementation.

This Subchapter shall be construed so as to carry out the intent of the act to ensure that such statute shall not be subverted or rendered ineffective, directly or indirectly, and to prevent the exaction of unjust, unreasonable and oppressive rents and rental agreements, and to forestall profiteering, speculation and other disruptive practices tending to produce threats to the public health, safety and general welfare; and that the policy herein expressed shall be implemented with due regard for the preservation of regulated rental housing.

Section 1

Section 2501.2 of this Part is amended to read as follows:

Section 2501.2 [Legal regulated rents for housing accommodations] Preferential Rents.

[The legal regulated rent shall be the initial regulated rent first established pursuant to section 2501.1 of this Part, and thereafter shall be the said initial legal regulated rent as it may be adjusted pursuant to the act and this Chapter; provided, however, that on or after July 1, 1984, the legal regulated rent for any housing accommodation registered pursuant to Part 2509 of this Chapter shall be the registered rent subject to any modification made pursuant to the act or this Chapter] Where the legal regulated rent is established and documented in a manner prescribed by the division, and a rent lower than such rent is charged and paid by the tenant, such lower rent shall be a preferential rent, which shall be subject to all adjustments provided by law and this Subchapter. Upon vacancy of the tenant who pays a preferential rent, the legal regulated rent shall be the legal regulated rent previously established by record within four years prior thereto, plus all intervening guidelines increases, plus such other rent increases as are authorized by law and this Subchapter.

Section 1

Section 2502.2 of this Part is amended to read as follows:

Section 2502.2 Effective date of adjustment of rents.

[The] Except with regard to increases pursuant to sections 2502.4(a)(2)(ii), (iii) and (iv) of this Part, where the legal regulated rent shall be adjusted effective the first rent payment date occurring 30 days after the filing of the application, the legal regulated rent shall be adjusted effective the date of issuance of an order by the division, unless otherwise set forth in the order, or on the effective date of a lease or other rental agreement providing for the rent guidelines board annual rate of adjustment as filed with the division and as provided for in section 2502.5 of this Part. Adjustments shall also be made upon vacancy or succession as provided in section 2502.7 of this Part, or upon improvements to an individual housing accommodation qualifying for a rent increase pursuant to section 2502.4(a)(2)(i) of this Part.

Section 2

Subdivision (a) of section 2502.3 of this Part is amended to read as follows:

(a) Fair Market Rent Appeals.

1. The tenant of a housing accommodation for which the initial legal regulated rent was established under section [2501.2] 2501.1 of this [Chapter] Title based upon the rent reserved in a lease or other rental agreement which became effective on or after January 1, 1974 may file within 90 days after notice has been received pursuant to section 2503.1 of this [Chapter] Title, an application on forms prescribed by the division for adjustment of the initial legal regulated rent on the allegation that such rent is in excess of the fair market rent and presenting facts which to the best of his information and belief support such allegation.



2. The division shall be guided by guidelines promulgated by the Rent Guidelines Board for the determination of fair market rents and, upon a determination that the initial legal regulated rent is in excess of the fair market rent, the division shall establish by order a new legal regulated rent, and further order a refund of any excess rent paid since [January 1, 1974] the base date or the date of the commencement of the tenancy, whichever is later, provided that no refund order shall relate to a period more than two years prior to the local effective date as defined in section 2500.4 of this [Chapter] Title. The order shall direct the [landlord] affected owner to make the refund of any excess rent to the tenant in cash, check or money order, or as a credit against future rents over a period not in excess of six months, and that if the landlord does not make the refund, that the order may be enforced or the rent offset by the tenant in the same manner as a division order awarding penalties pursuant to section 2506.1(e) of this [Chapter] Title. In the absence of collusion between the present owner and any prior owner, where no records sufficient to establish the fair market rent were provided at a judicial sale, or such other sale effected in connection with, or to resolve, in whole or in part, a bankruptcy proceeding, mortgage foreclosure action or other judicial proceeding, an owner who purchases upon such sale or subsequent to such sale shall not be liable for excess rent collected by any owner prior to such sale. An owner who did not purchase at such sale, but who purchased subsequent to such sale shall also not be liable for excess rent collected by any prior owner subsequent to such sale to the extent that such excess rent is the result of excess rent collected prior to such sale.



3. Court-appointed Receivers. A Receiver who is appointed by a court of competent jurisdiction to receive rent for the use or occupation of a housing accommodation shall not, in the absence of collusion or any relationship between such Receiver and any owner or other Receiver, be liable for excess rent collected by any owner or other Receiver, where records sufficient to establish the fair market rent have not been made available to such Receiver.

Section 3

The title of section 2502.4 of this Part is amended to read as follows:

Section 2502.4. [Applications for adjustment] Adjustment of legal regulated rent.

Section 4

Subdivision (a) of section 2502.4 of this Part is amended to read as follows:

(a) [Any landlord] (1) An owner may file an application to increase the legal regulated [rent] rents [otherwise allowable] of the building or building complex, on forms prescribed by the division, on one or more of the following grounds:

[(1) Increased service or facilities, substantial] Substantial rehabilitation, [or] major capital improvements and other adjustments.

(2) [The] Upon application by the owner, the division may grant an appropriate adjustment of a legal regulated rent where it finds that:

(i) [the landlord and tenant by mutual voluntary agreement, subject to approval by the division, agree to a substantial increase of dwelling space or an increase in the services, furniture, furnishings or equipment provided in the housing accommodations; which agreement may be established by the signatures of landlord and tenant on the prescribed application form or by corroborative proof of such earlier agreement; or

(ii)] there has been since January 1, 1974 an increase in the rental value of the housing accommodations as a result of a substantial rehabilitation of the building or housing accommodations therein which materially adds to the value of the property or appreciably prolongs its life, excluding ordinary repairs, maintenance and replacements and that the legal regulated rent has not been adjusted prior to the application based in whole or part upon the grounds set forth in the application; or

[(iii)] (ii) there has been since January 1, 1974 a major capital improvement required for the operation, preservation or maintenance of the structure; and that the legal regulated rent has not been adjusted prior to the application based in whole or part upon the grounds set forth in the application. An increase in the monthly legal regulated rent pursuant to this subparagraph and subparagraphs (iii), (iv) and (v) shall be 1/84th of the total cost of the approved items in the application. Improvements or installations for which the division may grant applications for rent increases based upon major capital improvements pursuant to this subparagraph are described on the following schedule. Other improvements or installations that are not included may also qualify, where all requirements of this subdivision have been met.

SCHEDULE OF MAJOR CAPITAL IMPROVEMENTS

l. AIR CONDITIONER:
- new central system; or individual units set in sleeves in the exterior wall of every housing accommodation; or, air conditioning circuits and outlets in each living room and/or bedroom (SEE REWIRING).

2. ALUMINUM SIDING:
- installed in a uniform manner on all exposed sides of the building (SEE RESURFACING).

3. BATHROOM MODERNIZATION:
- complete renovation including new sinks, toilets, bathtubs, and/or showers and all required trims in every housing accommodation; or any individual component or fixture if done building-wide.

4. BOILER AND/OR BURNER:
- new unit(s) including electrical work and additional components needed for the installation.

5. BOILER ROOM:
- new room where none existed before; or enlargement of existing one to accommodate new boiler.

6. CATWALK:
- complete replacement.

7. CHIMNEY:
- complete replacement, or new one where none existed before, including additional components needed for the installation.

8. COURTYARD, DRIVEWAYS AND WALKWAYS:
- resurfacing of entire original area within the property lines of the premises.

9. DOORS:
- new lobby front entrance and/or vestibule doors; or entrance to every housing accommodation, or fireproof doors for public hallways, basement, boiler room and roof bulkhead.

10. ELEVATOR UPGRADING:
- including new controllers and selectors; or new electronic dispatch overlay system; or new elevator where none existed before, including additional components needed for the installation.

11. FIRE ESCAPES:
- complete new replacement including new landings.

12. GAS HEATING UNITS:
- new individual units with connecting pipes to every housing accommodation.

13. HOT WATER HEATER:
- new unit for central heating system.

14. INCINERATOR UPGRADING:
- including a new scrubber.

15. INTERCOM SYSTEM:
- new replacement; or one where none existed before, with automatic door locks and pushbutton speakerbox and/or telephone communication, including security locks on all entrances to the building.

16. KITCHEN MODERNIZATION:
- complete renovation including new sinks, counter tops and cabinets in every housing accommodation or any individual component or fixture if done building-wide.

17. MAILBOXES:
- new replacements and relocated from outer vestibule to an area behind locked doors to increase security.

18. PARAPET:
- complete replacement.

19. POINTING AND WATERPROOFING:
- as necessary on exposed sides of the building.

20. REPIPING:
- new hot and/or cold water risers, returns, and branches to fixtures in every housing accommodation, including shower bodies, and/or new hot and/or new cold water overhead mains, with all necessary valves in basement.

21. RESURFACING OF EXTERIOR WALLS:
- consisting of brick or masonry facing on entire area of all exposed sides of the building.

22. REWIRING:
- new copper risers and feeders extending from property box in basement to every housing accommodation; must be of sufficient capacity (220 volts) to accommodate the installation of air conditioner circuits in living room and/or bedroom.

23. ROOF:
- complete replacement or roof cap on existing roof installed after thorough scraping and leveling as necessary.

24. SOLAR HEATING SYSTEM:
- new central system, including additional components needed for the system.

25. STRUCTURAL STEEL:
- complete new replacement of all beams including footing and foundation.

26. TELEVISION SYSTEM:
- new security monitoring system including additional components needed for the system.

27. WASTE COMPACTOR:
- new installation(s) serving entire building.

28. WASTE COMPACTOR ROOM:
- new room where none existed before.

29. WATER SPRINKLER SYSTEM (FOR FIRE CONTROL PURPOSES):
- new installation(s).

30. WATER TANK:
- new installation(s) serving entire building.

31. WINDOWS:
- new framed windows; or

(iii) there has been other necessary work performed in connection with, and directly related to a major capital improvement, which may be included in the computation of an increase in the legal regulated rent only if such other necessary work was completed within a reasonable time after the completion of the major capital improvement to which it relates. Such other necessary work must:

(a) improve, restore or preserve the quality of the structure and the grounds; and

(b) have been completed subsequent to, or contemporaneously with, the completion of the work for the major capital improvement; or

(iv) there has been an increase in services or an improvement, other than repairs, on a building-wide basis, which the owner can demonstrate are necessary in order to comply with a specific requirement of law; or

(v) with approval by the division, there have been other improvements made or services provided to the building or building complex, other than those specified in subparagraphs (i)-(iv) of this paragraph (2), with the express consent of the tenants in occupancy of at least 75 per cent of the housing accommodations;

[(iv)] (vi) the division, in determining the amount or rate of appropriate adjustment of a legal regulated rent shall take into consideration all factors bearing on the equities involved, subject to the general limitation that the adjustment can be put into effect without dislocation and hardship inconsistent with the purposes of the act, and including as a factor a return of the actual cost to the [landlord] owner, exclusive of interest or other carrying charges, and the increase in the rental value of the housing accommodations;

[(v) no adjustment of a legal regulated rent shall be granted for the replacement of equipment required to be maintained in the housing accommodations under the act or this Chapter, unless the landlord has entered a mutual voluntary agreement to such an adjustment with the tenant as provided for in subdivision (a) of this section.]

(3) An owner is entitled to a rent increase without the prior approval of the division where the owner and tenant by mutual voluntary agreement, agree to a substantial increase of dwelling space or an increase in the services, furniture, furnishings or equipment provided in or to a tenant's housing accommodation, on written tenant consent to the rent increase. In the case of a vacant housing accommodation, tenant consent shall not be required. The permanent increase in the legal regulated rent for the affected housing accommodation shall be 1/40th of the total cost incurred by the owner in providing such increase in dwelling space, services, furniture, furnishings or equipment, including the cost of installation, but excluding finance charges. Provided further that an owner who is entitled to a rent increase pursuant to this paragraph shall not be entitled to a further rent increase based upon the installation of similar equipment, or new furniture or furnishings within the useful life of such new equipment, or new furniture or furnishings.

Section 5

A new paragraph (4) of subdivision (a) of section 2502.4 of this Part is adopted to read as follows:

(4) An owner may apply for the division's advisory prior opinion, pursuant to section 2507.11 of this Title, as to whether the proposed work qualifies for an increase in the legal regulated rent.

Section 6

Subdivision (b) of section 2502.4 of this Part is repealed and a new subdivision (b) is adopted to read as follows:

(b) An owner may file an application to decrease essential services for a reduction of the legal regulated rent, or to modify or substitute essential services at no change in the legal regulated rent, on forms prescribed by the division on the grounds that:

1. the owner and tenant by mutual voluntary written agreement, consent to a decrease in dwelling space, or a decrease in the services, furniture, furnishings or equipment, or to a modification or substitution of the essential services provided in the housing accommodation; or



2. such decrease, modification or substitution is required for the operation of the building in accordance with specific requirements of law; or



3. such decrease, modification or substitution is not inconsistent with the act or this Subchapter.

No such reduction in rent or decrease in services, or modification or substitution of essential services shall take place prior to the approval of the owner's application by the division, except that a service decrease, modification, or substitution pursuant to paragraphs (1) and (2) of this subdivision may take place prior to such approval.

Section 7

Subdivision (a) of section 2502.5 of this Part is amended to read as follows:

(a) Vacancy lease.

Upon the renting of a vacant housing accommodation after the local effective date of the act, the landlord shall provide to the tenant and execute a valid written lease for a one- or two-year period at the tenant's option at a rent which may not exceed the legal regulated rent [then in effect], provided further that for a housing accommodation subject to the Emergency Housing Rent Control Law which becomes vacant after the local effective date of the act, the lease shall not provide for any increase in said rent for a period of one year.

Section 8

The opening paragraph of subdivision (c) of section 2502.5 of this Part is amended to read as follows:

(c) Limitations. [No lease fixing a rent pursuant to a guideline issued by the applicable Rent Guidelines Board shall provide for any adjustment during its term pursuant to any surcharge, supplementary adjustment or other modification to such guideline. No provision may be made in any lease for the payment of a rent in excess of the legal regulated rent except on the following conditions] The legal regulated rent established in a lease may only be adjusted as follows:

Section 9

Paragraph 1 of subdivision (c) of section 2502.5 of this Part is amended to read as follows:

(1) (i) [The] For renewal leases, the legal regulated rent immediately prior to the effective date of the lease may be increased by the appropriate rate of rent adjustment as last filed with the division by the Rent Guidelines Board for the county wherein the housing accommodation is located and if the said rate has not been filed by the commencement date of the lease term, the lease may make provision for the rent increase, if any, pursuant to the said rate to become effective when filed as of the commencement date of the lease term, unless the County Rent Guidelines Board shall have fixed a later effective date for the said rate, in which event the increase may only be effective as of that later date;

(ii) for vacancy leases, in addition to the increases permitted pursuant to section 2502.7 of this Part, if an applicable Rent Guidelines Board Order has not been issued by the execution date of the vacancy lease, and such order provides for a vacancy allowance, the lease may make provision for the rent increase pursuant to such vacancy allowance when filed, to become effective as of the commencement date of the lease term, unless the County Rent Guidelines Board shall have fixed a later effective date for the said allowance, in which event the adjustment may only be effective as of that later date;

Section 10

Paragraph (2) of subdivision (c) of section 2502.5 of this Part is amended to read as follows:

(2) Where a renewal lease is entered into after the local effective date, but before the effective date of the first [application] applicable guidelines as provided in section 4, subdivision b of the act, the lease may provide for an adjustment of rent pursuant to such guidelines, to be effective on the first day of the month next succeeding the effective date of such guidelines.

Section 11

Paragraph (3) of subdivision c of section 2502.5 of this Part is amended to read as follows:

(3) Pursuant to an order of the division, where the vacancy lease recites that:

1. an application for a rent increase pursuant to section 2502.4(a)(2)(i)[,] or (ii) [or (iii)] of this Part is pending before the division;



2. a rent increase shall be payable in the amount authorized by the division in the event an application is filed pursuant to section 2502.4(a)(2)(i) [or (ii)] of this Part, based upon work having been completed to comply with new or additional requirements of law;



3. a rent increase shall be payable in the amount, if any, authorized by the division in the event an application is filed to establish a hardship pursuant to section 2502.4(c) of this Part.

Section 12

Paragraph 6 of subdivision c of Section 2502.5 of this Part is amended to read as follows:

(6) [Lease upon vacancy] Vacancy prior to expiration of [prior] lease term.

1. [Where a lease] For leases that commenced on or after the local effective date, and were entered into on or before June 15, 1997, where the tenant vacates prior to the expiration of the term of the lease and the housing accommodation is rented to [and occupied by] a new tenant [prior to the date on which the prior lease would have expired] pursuant to a lease commencing during the same guidelines period as the prior lease, [the landlord shall provide to the new tenant and execute a valid written lease for a one- or two year term, at the tenant's option] the rental provided in the new lease shall: (a) be in accordance with and at the [applicable] guideline rate of rent adjustment applicable to the new lease; (b) provided, however, that the base for computing such rent adjustment shall be set by adjusting the prior lease rent to the maximum rent that would be permissible if the last lease with the prior tenant had been for a term ending on the date such prior tenant vacated the housing accommodation; and (c) may include such other rent increases as are authorized pursuant to the act or this Subchapter.



2. For leases entered into after June 15, 1997, the rental provided in the new lease shall be in accordance with section 2502.7 of this Part. The length of the occupancy by the tenant vacating prior to the expiration of the lease term shall have no bearing on the availability of lawful rent increases.

Section 13

Paragraph (7) of subdivision (c) of section 2502.5 of this Part is amended to read as follows:

(7) Same terms and conditions. (i) The lease provided to the tenant by the [landlord] owner pursuant to both paragraphs (1) and (2) of this subdivision shall be on the same terms and conditions as the last lease prior to the local effective date, except where a change is required or authorized by a law applicable to the building or to leases for housing accommodations subject to the act. Where there was no prior lease for the housing accommodations, the lease shall be on the same terms and conditions as the last leases for the other housing accommodations in the building subject to the act, and shall otherwise provide for the maintenance by the [landlord] owner of all services and facilities required by the laws applicable to the building and housing accommodations. (ii) Where an owner has filed an Owner's Petition for Decontrol (OPD) with the division, as provided for in section 2511.3 of this Title, and the period during which the owner must offer a renewal lease pursuant to subdivision (a) of section 2503.5 of this Title has not expired, and the proceeding for decontrol is pending, the owner shall be permitted to attach a rider to the offered renewal lease, on a form prescribed or a facsimile of such form approved by the division, containing a clause notifying the tenant that the offered renewal lease, if accepted, shall nevertheless no longer be in effect after 60 days from the issuance by the division of an order of decontrol, or, in the event that a petition for administrative review (PAR) is filed against such order of decontrol, after 60 days from the issuance by the division of an order dismissing or denying the PAR.

Section 14

Section 2502.6 of this Part is amended to read as follows:

Section 2502.6 Orders where the legal regulated rent or other facts are in dispute, in doubt, or not known, or where the legal regulated rent must be fixed.

(a) Where the legal regulated rent or any fact necessary to the determination of the legal regulated rent, or the dwelling space, essential services, [furniture, furnishings] or equipment required to be provided with the accommodation, is in dispute between the [landlord] owner and the tenant, or is in doubt, or is not known, the division at any time upon written request of either party, or on its own initiative, may issue an order in accordance with section 2506.1 of this Title, and other applicable provisions of this Subchapter, determining the facts, including the legal regulated rent, the dwelling space, essential services [furniture, furnishings] and equipment[,] required to be provided with the housing accommodations. Such order shall determine such facts or establish the legal regulated rent [as of the local effective date or the date of commencement of the tenancy, whichever is later] in accordance with the provisions of this Subchapter. Where such order establishes the legal regulated rent, it may contain a directive that all rent collected by the landlord in excess of the legal regulated rent established under this section for a period commencing with the local effective act or the date of the commencement of the tenancy, if later, be refunded to the tenant in cash or as a credit to the rent thereafter payable, and upon the failure to comply with the directive, that the order may be enforced in the same manner as prescribed in section 2506.1(e) of this Title.

(b) However, in the absence of collusion or any relationship between an owner and any prior owner, where such owner purchases the housing accommodations upon a judicial sale, or such other sale effected in connection with, or to resolve, in whole or in part, a bankruptcy proceeding, mortgage foreclosure action or other judicial proceeding, and no records sufficient to establish the legal regulated rent were made available to such purchaser, such orders shall establish the legal regulated rent on the date of the inception of the complaining tenant's tenancy, or the date four years prior to the date of the filing of an overcharge complaint pursuant to section 2520.1 of this Title, whichever is most recent, based on either:

1. documented rents for comparable housing accommodations, whether or not subject to regulation pursuant to this Subchapter, submitted by the owner, subject to rebuttal by the tenant; or



2. if the documentation set forth in paragraph (1) of this subdivision is not available or is inappropriate, data compiled by the division for comparable housing accommodations; or



3. in the event that the information described in paragraphs (1) or (2) of this subdivision is not available, the complaining tenant's rent reduced by the most recent guidelines adjustment.

This subdivision shall also apply where the owner purchases the housing accommodations subsequent to such judicial or other sale. Notwithstanding the foregoing, this subdivision shall not be deemed to impose any greater burden upon owners with regard to record keeping than is provided pursuant to section 12(f)(8) of the act. In addition, where the amount of rent set forth in the rent registration statement filed four years prior to the date the most recent registration statement was required to have been filed pursuant to Part 2529 of this Title is not challenged within four years of its filing, neither such rent nor service of any registration shall be subject to challenge any time thereafter.

Section 15

A new section 2502.7 of this Part is adopted to read as follows:

Section 2502.7 Rent adjustments upon vacancy or succession.

(a) The legal regulated rent for any vacancy lease entered into after June 15, 1997 shall be as hereinafter provided in this subdivision. The previous legal regulated rent for such housing accommodation shall be increased by the following: (1) if the vacancy lease is for a term of two years, twenty percent of the previous legal regulated rent; or (2) if the vacancy lease is for a term of one year, the increase shall be twenty percent of the previous legal regulated rent less an amount equal to the difference between (i) the two year renewal lease guideline promulgated by the Rent Guidelines Board of the county in which the housing accommodation is located, applied to the previous legal regulated rent and (ii) the one year renewal lease guideline promulgated by the Rent Guidelines Board of the county in which the housing accommodation is located, applied to the previous legal regulated rent. In addition, if the legal regulated rent was not increased with respect to such housing accommodation by a permanent vacancy allowance within eight years prior to a vacancy lease executed on or after June 15, 1997, the legal regulated rent may be further increased by an amount equal to the product resulting from multiplying such previous legal regulated rent by six-tenths of one percent and further multiplying the amount of rent increase resulting therefrom by the greater of (a) the number of years since the imposition of the last permanent vacancy allowance, or (b) if the rent was not increased by a permanent vacancy allowance since the housing accommodation became subject to the act and this Subchapter, the number of years that such housing accommodation has been subject to the act and this Subchapter. Provided that if the previous legal regulated rent was less than three hundred dollars, the total increase shall be as calculated above, plus one hundred dollars per month. Provided further, that if the previous legal regulated rent was at least three hundred dollars and no more than five hundred dollars, in no event shall the total increase pursuant to this subdivision be less than one hundred dollars per month.

All such increases shall be in lieu of any allowance authorized for the one or two year renewal component of the guideline promulgated by the Rent Guidelines Board of the county in which the housing accommodation is located, but shall be in addition to any other increases authorized pursuant to the act and this Subchapter, including adjustments pursuant to subdivision (a) of section 2502.4 of this Part, and any applicable vacancy allowance authorized by the Rent Guidelines Board.

(b) Any provision of this Subchapter to the contrary notwithstanding, where all tenants named in a lease have permanently vacated a housing accommodation, and a primary-resident family member of such tenant or tenants (first successor) is entitled to and executes a renewal lease for the housing accommodation, as provided in section 2503.5 of this Title, and thereafter permanently vacates the housing accommodation, if such housing accommodation continues to be subject to the act and this Subchapter after such first successor vacates, and a primary-resident family member (second successor) is entitled to and executes a renewal lease for the housing accommodation, as provided in section 2503.5 of this Title, the legal regulated rent shall be increased by a sum equal to the allowance then in effect for vacancy leases, including the amount allowed by subdivision (a) of this section. Such increase shall be in addition to any other increases provided for in the act and this Subchapter, including adjustments pursuant to subdivision (a) of section 2502.4 of this Part, and any applicable vacancy allowance authorized by the Rent Guidelines Board of the county in which the housing accommodation is located, and shall be applicable in like manner to the renewal lease of each second subsequent succeeding family member.

Section 16

A new section 2502.8 of this Part is adopted to read as follows:

Section 2502.8 Surcharge for the installation and use of washing machines, dryers and dishwashers.

(a) Where a tenant requests permission from the owner to install a washing machine, dryer or dishwasher, whether permanently installed or portable, and the owner consents, the owner may collect surcharges, without notification to or approval by the division in an amount specified in an Operational Bulletin to be issued by the division pursuant to section 2507.11 of this Title. The surcharges authorized by this section shall not be part of the legal regulated rent.

(b)(1) Where a prior installation by a tenant of a washing machine, dryer or dishwasher comes to the attention of the owner and the owner consents to the continued use of the washing machine, dryer or dishwasher, the surcharges provided for in this section shall only be available prospectively;

(2) Under no circumstances shall servicing or replacement of such washing machine, dryer or dishwasher become a service required to be provided by the owner pursuant to this Subchapter;

(3) Where there is in effect a prior practice of charging for installation of a tenant-owned washing machine, dryer or dishwasher, the owner may continue the charge, which may also continue to be included in the legal regulated rent, if such was the prior practice.

Section 17

A new section 2502.9 of this Part is adopted to read as follows:

Section 2502.9 Surcharges for submetered electricity or other utility service.

(a) Where an owner acts as a provider of a utility service (including, but not limited to electricity, gas, cable or telecommunications), the owner may collect surcharges which shall not be part of the legal regulated rent, and shall not be subject to this Subchapter.

Section 1

Section 2503.1 of this Part is amended to read as follows:

Section 2503.1 Notice of initial legal regulated rent.

Every owner of housing accommodations subject to this [Chapter] Subchapter, which are rented to a tenant on the local effective date, shall within 30 days after the local effective date give notice in writing by certified mail to the tenant of each such housing accommodation on a form provided by the division for that purpose, reciting the initial legal regulated rent for the housing accommodation and the tenant's right to file an application for adjustment of the initial legal regulated rent within 90 days after receipt of the notice. Notwithstanding the foregoing, nothing in this section shall require an owner to serve the above notice after four years from the date of the commencement of the initial stabilized tenancy or maintain or produce any records relating to rentals of such accommodations for more than four years prior to the date the most recent registration was required to have been filed pursuant to Part 2509 of this Title.

Section 2

Section 2503.2 of this Part is amended to read as follows:

2503.2 Certification of services.

Every owner of housing accommodations subject to this [Chapter] Subchapter shall file annually with the division, on a form which it shall provide for that purpose, a written certification that he is maintaining and will continue to maintain all services furnished on May 29, 1974, the effective date of the act, or required to be furnished by any law, ordinance or regulation applicable to the premises. Compliance with section 2509.2 of this Title shall also be compliance with this section.

Section 3

Section 2503.3 of this Part is amended to read as follows:

Section 2503.3 Failure to file a certification of services.

No [landlord] owner shall be entitled to collect a rent guidelines board rent adjustment authorized under section 2502.5 of this [Chapter] Title until the owner has filed a proper certification as required by section 2503.2 of this Part, nor shall any owner be entitled to a rent restoration upon a restoration of services unless such restoration of services has been determined by the division in a proceeding commenced by an owner's application to restore rent or a proceeding commenced pursuant to section 2506.2 of this Title, or in another proceeding pursuant to these regulations. Such restoration shall take effect on the date specified in the order of the division issued in such proceeding.

Section 4

Section 2503.4 of this Part is amended to read as follows:

Section 2503.4 Failure to maintain services as certified.

1. A tenant may apply to the division for a reduction of the legal regulated rent to the level in effect prior to the most recent adjustment under section 2502.5(c) of this [Chapter] Title, subject to the limitations of subdivisions (b) through (g) of this section, and the division may so reduce the rent where it is found that the owner has failed to maintain the services. If the division further finds that the owner has knowingly filed a false certification, it shall, in addition to abating the rent, assess the owner with the reasonable costs of the proceeding including attorney's fees, and impose a penalty not in excess of $250 for each false certification.
   
   
2. Where an application for a rent adjustment pursuant to section 2502.4(a)(2) of this Title has been granted, and collection of such rent adjustment commenced prior to the issuance of the rent reduction order, the owner will be permitted to continue to collect the rent adjustment regardless of the effective date of the rent reduction order, notwithstanding that such date is prior to the effective date of the order granting the adjustment. In addition, regardless of the effective date thereof, a rent reduction order will not affect the continued collection of a rent adjustment pursuant to section 2502.4(a)(2)(i) of this Title, where collection of such rent adjustment commenced prior to the issuance of the rent reduction order.
   
   

1. In the event notice of any inspection is given by the division in a proceeding commenced pursuant to this section, the inspection shall be conducted on notice to both the owner and tenant.
   
   
2. Upon receipt of a copy of the tenant's complaint from the division, an owner shall have 45 days in which to respond. If during this period of time, an owner has attempted, but been unable to obtain access to the subject housing accommodation to correct the service or equipment deficiency, the owner should set forth such facts in the response. Upon receipt thereof, in order to facilitate the resolution of the complaint, the division may direct an inspector to accompany the owner or the owner's agent to the housing accommodation to determine whether such access is being provided. In order for the division to coordinate the inspection, the owner should indicate that access has been denied in the response submitted to the division and should include copies of two letters to the tenant attempting to arrange for access. Each of the letters must have been mailed at least 8 days prior to the date proposed for access, and must have been mailed by certified mail, return receipt requested. Exceptions to such requirements for inspection may be permitted under emergency conditions, where special circumstances exist, or pursuant to court order. The service complaint, or objection to a rent restoration application, by a tenant who fails to provide access at the time arranged by the division for the inspection will be denied.
   
   

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 owner 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; 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 owner; 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 owner has provided formal storage boxes or bins to tenants within four 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.
    
    

1. APPLIANCES AND FIXTURES:
   
   Chips on appliance, countertop, 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.
   
   

1. 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;
   
   
2. services required to be provided by laws or regulations other than the act or this Subchapter shall not be subject to this subdivision.
   
   

1. 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 an owner's application relating to the restoration of rents based upon the restoration of such services is filed, the tenants or owner 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 owner). 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 division on the opposing party, will raise a rebuttable 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 owner).
   
   
2. 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 division.
   
   
3. There must be no common ownership, or other financial interest, between such architect or engineer and the owner 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 division 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.
   
   

Section 5

Subdivision (b) of section 2503.5 of this Part is amended to read as follows:

(b)(1) Where the [landlord] owner fails to offer a renewal of the lease in accordance with subdivision (a) of this section, the tenant shall have the option of choosing [(1)](i) whether the one-or two year term of such lease whenever it is offered shall commence on the date a renewal lease would have commenced had a timely offer been made, or [(2)](ii) on the first rent payment date commencing 90 days after the date that the [landlord] owner does offer the lease to the tenant on the prescribed notice form. The guidelines rate applicable in such cases shall be the rate in effect on the first day subsequent to the expiration of the last lease or the rate in effect when the lease is renewed, whichever is lower.

(2) Where the tenant fails to timely renew an expiring lease or rental agreement offered pursuant to this section, and remains in occupancy after expiration of the lease, such lease or rental agreement may be deemed t