A shorter version of this Article originally appeared in Bushwick Daily, where Michelle Itkowitz is the “Tenant’s Rights Adviser”.
This is the fourth article in a series about your rights as a New York City Tenant. In this column, I am going to answer one of our reader’s specific questions.
BD Reader Question: “How much is my landlord allowed to raise my rent? And over what time period?”
First, are you Rent Stabilized? Or is your apartment free-market? Your answer to my question will make all the difference!
HOW DO I KNOW IF I AM RENT STABILIZED OR FREE-MARKET?
Rent Stabilization applies to about one million tenancies in New York City. There is no official list somewhere that definitively tells the world which apartments are subject to Rent Stabilization. The NYS Division of Housing and Community Renewal (DHCR) has jurisdiction over matters relating to Rent Stabilization and the DHCR maintains some records. But the records the DHCR maintains contain information that is largely self-reported by landlords and that is not controlling with regard to an apartment’s Rent Stabilization status. The problem is that many landlords lie and say an apartment is free-market, when it is actually Rent Stabilized.
How do you ever get a definitive answer on an apartment’s Rent Stabilization status? With some exceptions, the last word on whether an apartment is Rent Stabilized is in the hands of the courts or the DHCR. Until a judge is satisfied that an apartment is not Rent Stabilized, the matter is always, in some measure, unsettled. Why is this so complicated? Because it is. There are many statutes and mountains of case law, stretching back to the 1970’s, that, when woven together, make up the rent regulatory scheme in New York City. There are rules, and exceptions to the rules, and exceptions to the exceptions to the rules.
In general, if a Building was built before 1974 and contains six or more units or is new construction and is receiving a real estate tax exemption, then the apartments therein are Rent Stabilized unless certain exceptions apply. Therefore, if your landlord hits you with a huge rent increase, and even suspect that you are Rent Stabilized, you should first check with a lawyer who is qualified to evaluate your regulatory status. If you are Rent Stabilized, not only will that proposed rent increase not be valid, but the landlord probably owes you money on a rent overcharge case.
RENT STABILIZED TENANTS
If you are a Rent Stabilized tenant, you have mountains of rights. Rent Stabilization limits the rent an owner may charge for an apartment and restricts the right of an owner to evict tenants. Rent Stabilized tenants are entitled to leases and lease renewals. Even if landlord fails to renew a Rent Stabilized tenant’s lease, all tenant’s rights remain intact. Rent Stabilization Code (“RSC”) § 2523.5. If a Rent Stabilized lease is not properly renewed, a landlord cannot sue tenant for the rent. Paid Enters. v. Gonzalez, 173 Misc.2d 681, 682 (App. Term 2nd Dept. 1997) (“Rent [S]tabilization is a lease-based regulatory scheme. As such, a tenant’s obligation to pay the stabilized rent is dependent on the tenant’s agreement to pay it.”). Family members of a Rent Stabilized tenant residing in a Rent Stabilized apartment often have succession rights to the tenancy. RSC § 2523.5(b)(1); RSC § 2520.6(o).
Under Rent Stabilization, landlord is required to follow a very specific procedure for Rent Stabilized lease renewals. Leases must be entered into and renewed for one- or two-year terms, at the tenant’s choice. RSC § 2522.5. Landlord must send the lease renewal offer between 150 and 90 days before the expiration of the current lease. RSC § 2523.5. Every lease renewal offer must have a special DHCR rider attached. RSC § 2522.5. A Rent Stabilized lease renewal offer must be on the same terms and conditions as the expired lease. RSC § 2522.5.
Rent increases for Rent Stabilized tenants are controlled by the NYC Rent Guidelines Board, which sets maximum rates for rent increases once a year, which are effective for leases beginning on or after October 1st. Long story short, a Rent Stabilized tenant’s rent goes up much more gradually that a free-market tenant’s rent.
But let’s say you are certain that you are not Rent Stabilized; you are a free-market tenant. Then your landlord can ask to raise your rent as much as they want to. You do not have to agree to the rent increase. If, however, you do not agree to the increase and do not leave on your own, the landlord can eventually bring a holdover case (an eviction case) against you.
As of June 14, 2019 of this year, the NYS legislature passed the Housing Stability and Tenant Protection Act (“HSTPA”). As a result of the HSTPA, Real Property Law § 266(c) now requires landlord to give tenant notices to increase a free-market tenant’s rent by five percent (5%) or more or to refuse to renew a free-market tenancy. Real Property Law § 226-c (Notice of rent increase or non-renewal of residential tenancy) has been added and states:
“1. Whenever a landlord intends to offer to renew the tenancy of an occupant in a residential dwelling unit with a rent increase equal to or greater than five percent above the current rent, or the landlord does not intend to renew the tenancy, the landlord shall provide written notice as required in subdivision two of this section. If the landlord fails to provide timely notice, the occupant’s lawful tenancy shall continue under the existing terms of the tenancy from the date on which the landlord gave actual written notice until the notice period has expired, notwithstanding any provision of a lease or other tenancy agreement to the contrary.
2. (a) If the tenant has occupied the unit for less than one year and does not have a lease term of at least one year, the landlord shall provide at least thirty days’ notice.
(b) If the tenant has occupied the unit for more than one year but less than two years, or has a lease term of at least one year but less than two years, the landlord shall provide at least sixty days’ notice.
(c) If the tenant has occupied the unit for more than two years or has a lease term of at least two years, the landlord shall provide at least ninety days’ notice.”
Here is a chart that makes the new rules easier to understand:
If the landlord fails to provide the written notice in the allotted time frames to the tenant regarding a rent increase or a non-renewal, then the tenancy continues under its existing terms (even if the lease has expired) until the required notice has been given and the notice period has expired.
This law is very new and is a big change. Therefore, many landlords may not even know about this. Send your landlord a copy of this article if they try to raise your rent more than 5 percent, refuse to renew your lease, or bring an end-of-lease holdover eviction proceeding against before giving you the required notice.