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My landlady recently offered me an attractive move within the building, to a renovated unit her in-laws used to live in, for only a $100 increase in rent. I found out after the fact that the unit I had been living in is rent-stabilized. My new apartment used to be stabilized, too, but is now permanently exempt because her in-laws lived there too long. The lease is up for renewal soon, and the landlady said my rent will be going up by $400. It seems like she moves her relatives around to rent-stabilized units until they're permanently exempt. Do I have any legal recourse?


In a nutshell: Yes, it sounds like you do, says Sam Himmelstein, a lawyer who represents residential and commercial tenants and tenant associations

"First of all, a rent-stabilized apartment doesn't become permanently exempt when it's owner-occupied," Himmelstein says. "For the period it's occupied by the landlord [or the landlord's family], it is exempt, and then it goes back into rent stabilization when the owner moves out." 

For your new apartment, your landlady can charge you for whatever rent increases she would have been entitled to had it been occupied by a stabilized tenant, as set by the New York City Rent Guidelines Board. These increases would likely be small, given that for the past several years, the RGB has approved relatively small hikes for lease renewals on stabilized apartments.

Your landlady could also legally increase the rent if she made any major capital improvements to the building—but not by as much as $400 per month. For MCI-related rent hikes, the improvement must be approved by the Division of Housing and Community Renewal and the landlady must notify you of the changes; even then, she can only increase the rent by six percent per year, max.

"The tenant's rent should be only whatever the prior stabilized tenant was paying, plus whatever increases were deemed [okay] by the RGB and DHCR," Himmelstein says. 

According to the New York City Rent Guidelines Board, landlords can legally remove tenants from rent-stabilized apartments in order to move themselves or their family members in, provided they give you at least 90 days notice. However, if you move to another unit in the building, you may be able to take your stabilized status with you. 

"The general rule is that rent stabilization is a question of objective facts and circumstances, and stabilized status cannot be conferred by private agreement or waiver. The exception is if the tenant relocates to another apartment owned by the same landlord at the request and behest of the landlord," Himmelstein says. "An apartment that might not otherwise be stabilized can become stabilized if you moved because the landlord wanted you to." 

In this case, though, he says it sounds like your current unit is stabilized anyway. You have several options for addressing your landlady's overcharging, Himmelstein says: You could file an improper lease renewal and rent overcharge complaint with the DHCR, in which case your landlady will be asked to produce documentation that justifies the rent increase.

You also have the option of suing in New York State Supreme Court for a declaratory judgment stating that you are in fact rent-stabilized and the new rent is illegal, though this process would likely lead to expensive legal fees.

Finally, you could refuse to sign the lease, which could lead to your landlady taking you to housing court. There, you would defend your case by demonstrating that you're a stabilized tenant and your landlady is illegally charging you market-rate rent—but unfortunately, any time you go to housing court, you risk ending up on the tenant blacklist.

"If not for the blacklist concerns, that would actually be my preferred forum, because the judges know the housing law," Himmelstein says. "But the issues in this case are fairly complicated and the tenant should have a lawyer, no matter where they go." 


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Sam Himmelstein, Esq. represents NYC tenants and tenant associations in disputes over evictions, rent increases, rental conversions, rent stabilization law, lease buyouts, and many other issues. He is a partner at Himmelstein, McConnell, Gribben, Donoghue & Joseph in Manhattan. To submit a question for this column, click here. To ask about a legal consultation, email Sam or call (212) 349-3000.

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