Four-Year Rule Applied Despite Nonprimary Residence Clause

Rent-stabilized tenant complained of a rent overcharge. The DRA found no overcharge. The base date rent charged four years before tenant complained was $2,322, and all increases since then were lawful. Tenant appealed, claiming that his initial 1993 lease was a sham, intended to avoid rent stabilization. Prior landlord had required tenant to sign a vacancy lease with a nonprimary residence rider, despite tenant’s intention to live in the apartment as his primary residence. Landlord argued that tenant waited 12 years to complain.

The DHCR ruled against tenant, finding no fraud or illusory tenancy warranting a review of older rent history. Tenant then filed an Article 78 petition, claiming that the DHCR’s decision was arbitrary and unreasonable. The DHCR agreed to reconsider the case but, after doing so, again ruled against tenant. Tenant was the first rent-stabilized tenant of the apartment after rent control and paid $1,947 at the time. Tenant could have filed a fair market rent appeal but never did so. Despite the nonprimary residency clause, there was no proof that the parties intended to evade the law. Landlord filed annual rent registration statements and renewed tenant’s lease at applicable increases.

Pehrson: DHCR Adm. Rev. Docket No. WH410002RP (1/13/10) [5-pg. doc.]