Q: Can I return overcharged money that are difference between monthly rent and sum paying my landlord as a tenant to coop?
I have rented(subleted) the apartment in Mitchell-Lama building. My landlord is shareholder of this cooperative. And he also is a primary tenant of cooperative. I have only oral agreement about rent and must pay 2000$ per month. My landlord as a primary tenant pays to cooperative about 1000$. The difference is 1000$ per month.
I have known a court decision Berkovich v. Mostovaya that “Moreover, while the Mitchell-Lama statute does not expressly provide a cause of action for the return of overcharges collected, it is our view that furtherance of the public policy underlying the statute dictates that such a cause of action should exist”.
I would want to know, have I right to return overcharged money that are the difference between the monthly rent 2000$ for me and the sum paying my landlord as a primary tenant to cooperative. And what better way to solve my problem is, to lodge a claim for the recovery of excess rents paid to Housing Court or a complaint to NYC Housing Preservation
A:
No one can prevent you from suing your landlord for overcharging rent. How you plead your causes of action is more important than knowing you like anyone else is not stopped by a gatekeeper from filing a lawsuit.
Unless the shareholder had permission to sublease, he already forfeited his right to retain the proprietary lease. Since you alone reside in the apartment the landlord must have made another abode his primary residence. That is a permanent strike and cannot be cured by the landlord returning to try to live again in the apartment. If the sublet was without permission that adds to another strike but a breach of lease is curable. The rent overcharge even if your claims for clawback do not succeed is strike three since the act of profiteering by the unlawful rental of the apartment is not curable even if the excess rent collected is voluntarily returned.
Did you pay cash? Do you have receipts? If not that is strike four since NY State law mandates giving a written receipt for cash rent payments. But without receipts, it is pretty difficult to prove you paid a ridiculously high rent without a paper trail and without a written agreement.
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