Update: Both sides of the referendum on the rent control ordinance are now posted together so people can see each side’s relative positions.
From the desk of the Mile Square Taxpayers Association:
Mile Square Taxpayers Association
Official Position on Ballot Question 2
Hoboken’s rent leveling ordinance has been the subject of nearly 2 years of intense scrutiny and debate, leading to a 9-0 vote by the Council to adopt amendments to correct administrative and legislative issues that lead a judge to conclude the ordinance is arbitrary, capricious and unconstitutional and that the rent leveling office’s records are unreliable.
Rescinding the Council’s action would return Hoboken to a chaotic rent control environment in which property owners would be subject to liabilities despite performing under the ordinance, leading to continued litigation and a frozen market for rent control properties in Hoboken.
The Council researched the Ordinance and held 9 hearings within an 18-month process beginning in September of 2009. Z-88 is the result of that process, during which tenants and landlord arguments were considered and helped shape the amendments that were passed 9-0. Subsequently, the Council rejected the Petitioner’s motion to rescind the law, leading to the question appearing on the ballot.
The Amendment has five essential components:
Requires Disclosure to Tenants
Z-88 adds an important protection for tenants, for the first time requiring that they are notified of their right to request a legal rent calculation from the rent leveling board.
Allows Alternative Evidence
The central problem that caused the rent leveling ordinance to be deemed unconstitutional was the requirement of a vacancy decontrol form being on file at the rent leveling office to qualify for increases in rent. This form was never produced by the rent leveling office – rent-leveling board administrators testified in depositions for a Superior Court case that they instead instructed property owners to note decontrols on their registration statements. More recently, the rent leveling office changed this policy, producing a form and requiring it. The Court found that landlords cannot be expected to file a form that was not accepted by the rent leveling office, and the Council subsequently adopted the Z-88 amendment to re-establish the constitutionality of the law. Elementally, allowing accused persons to provide evidence in their own defense is an inalienable right. In a circumstance where the rent leveling board’s records were deemed unreliable, accepting and assessing evidence provided by landlords, which would be in possession of leases that demonstrate their compliance with rent increase standards, is only fair.
Implements Time Limits
Z-88 provides a tenant with a 2-year period of repose to request a legal rent calculation and provides for a 2-year maximum refund of overpaid rent, which would be tripled under the Consumer Protection Act and result in 6-years of refund of overpaid rent. Rents would still be rolled-back as far as 1985 if found to be over-charged. This is the most generous return-of-rent and repose period in Hudson County.
Empowers Rent Leveling Board Rulings
Currently, most violations of the rent-leveling ordinance result in cases in Superior Court. The Z-88 amendments provide some powers the rent leveling board to adjudicate matters – but those powers do not exclude any party from appealing to Superior Court. In instances where the rent leveling board makes a ruling that is abided by both parties, significant legal expenses are saved by the City, the landlord and the tenant. More than $500,000 in rent control related legal fees have been borne by Hoboken in the last year.
Creates a base year of 1985
This is the first year record keeping of rent registration was formalized and is the earliest, although still unreliable, opportunity to assess legal rents.
Policy and Legal Implications
Litigation motivation. Tenant attorneys working on contingency fees in Hoboken exploit the administrative gaps in the law and rent leveling office to create “phantom violations” in which a property owner may be charging a legal rent but is still not in compliance with the technical language of the law. Under the Consumer Protection Act, it is impossible to overcome the flaws in the Ordinance — in fact, the current owner of the property is liable to return rents they did not even collect. Settlements and awards have routinely in the hundreds of thousands of dollars, with lawyers soliciting entire buildings that are then driven into bankruptcy by the findings. And once the rent is rolled back, the buildings are virtually value-less. This is not the intention of the rent control law, and more elementally, it is unethical to recognize that you are taking property from one person and handing it to another with no legitimate exchange of value. The single impact from the Z-88 Amendments is to prevent that abuse. Z-88 does not eliminate any tenant legitimate protection, it eliminates an attorney’s windfall.
Condo conversion manifest. Without Z-88, property owners are encouraged to convert rental properties to condominium to avoid liabilities. This is the most serious threat to maintaining affordable rental stock in Hoboken.
Inequitable tax burden. Poorly functioning rent control laws further burdening single-family homeowners with higher taxes (because rent control restricts income to buildings, they pay less in tax than they otherwise might). By unnecessarily and unfairly rolling back rents, single-family homeowners must pick up the burden for town expenses. By incurring increased legal expenses, single-family homeowners must pick up the burden, as rent control properties only pay tax on an income basis and their taxes cannot be increased unless their revenues are increased.
Threats of judicial action. Ultimately, if Council action does not cure the problems in the Hoboken Rent Leveling Ordinance, judges will continue to do so, perhaps naming landlords the prevailing party in a pending class action against the City whose financial implications are in the hundreds of millions of dollars.
Implications of poorly administered law. The biggest problem in Hoboken is that the rent leveling office is managed in arrears rather than affirmatively. If at the point of registration rents were assessed for compliance by the rent leveling office, there would be no need for legal rent calculations. But poor procedures and poor record keeping have led us where we are, and without the administrative capacity to mange its ordinance affirmatively – which is what almost all other municipalities do – these amendments are necessary in order to establish an authoritative and functional rent leveling office.
Sustaining Z-88 is essential for a normal functioning rent control environment in Hoboken, as it:
– restores constitutionality to the rent leveling ordinance;
– overcomes unreliable record keeping by providing ability to supply evidence;
– requires that tenants are provided notice of their rights;
– eliminates phantom violations that place unfair liabilities on property owners;
– removes the title clouds from buildings, thawing the real estate market;
– supports 18 months of Council research to arrive at Amendments;
– motivates property owners to maintain rental property rather than convert.
Talking Ed Note:
Rent control advocates opposed to the updated rent control ordinance are invited to submit their view on the ballot question. Please make your submissions to firstname.lastname@example.org.