Sunday, October 24, 2010

Appellate court hears "Unique or Peculiar" Case

The Appellate Division First Department - the state's mid-level court for our area - heard oral argument in the "unique or peculiar circumstances" case on October 21, 2010. 
The "unique or peculiar" phrase refers to a provision of the state's Emergency Tenant Protection Act that landlords are trying to use to increase the first stabilized rent when they take pre-1974 buildings out of Mitchell-Lama. A couple of years ago, the state's highest court (the Court of Appeals) ruled that the Emergency Tenant Protection Act's "U or P" provision applies to all apartments (leaving Mitchell-Lama) that were built or vacated any time after July 1969 and before 1974. Thus owners MAY APPLY to DHCR for a "U or P" increase for such apartments.

The landlords challenged DHCR's 2007 regulation that says that just leaving Mitchell-Lama is not by itself sufficient to show "unique or peculiar circumstances" that would raise the rent stabilized rents to market rate.

The lower court (called the State Supreme Court) had ruled that the regulation was a valid interpretation of the state law, the Emergency Tenant Protection Act of 1974. Among other factor the regulation met, it is consistent with long-held DHCR policy and other court decisions : that "U or P" is not applicable to entire buildings (except in very rare circumstances), let alone to entire programs.

For a complete summary of the article, click here.