1278. Petition to Obtain Previously Lost Annual General Adjustments (AGA's) Pursuant to CA Civil Code Section 1947.7
When an owner who has previously been out of compliance comes into compliance with the ordinance, regulations, or applicable housing, health and safety codes, all AGA's lost during the period of noncompliance may be granted prospectively. For any residential unit which has been registered and for which a base rent has been listed or for any residential unit which an owner can show, by a preponderance of the evidence, a good faith attempt to comply with the registration requirements or who was exempt from registration requirements in a previous version of the ordinance and for which the owner of that residential unit has subsequently found not to have been in compliance with the ordinance or regulation, all annual rent adjustments which may have been denied during the period of the owner's non-compliance shall be restored prospectively once the owner is in compliance with the ordinance or regulation.
In addition, to be eligible, the owner must state under penalty of perjury that the unit is in substantial compliance with the ordinance, regulations and applicable codes. Specifically, he or she certify payment of all fees and penalties owed to the Rent Stabilization Program (RSP) which have not otherwise been barred by the statute of limitations, substantial compliance with applicable local and state housing code provisions, and satisfaction of all claims for refunds of rental overcharges brought be tenants or by the RSP on behalf of tenants of the affected unit.
The owner is not entitled to recover any AGA's which have been previously regained through a net operating income analysis or, for tenancies beginning on or after January 1, 1999, that were lost prior to the establishment of the most recent initial rent.
Upon the petition of the landlord, the owner's eligibility for previously lost AGA's shall be determined. There is no filing fee.
At the time of filing the petition, the owner shall submit a proof of service showing that all opposing parties have been provided with a complete copy of the documents filed.
Sections 1201-1213 of these regulations shall govern all additional petition procedures for AGA petitions.
(C) Administrative Determination
The petition may be decided without a hearing where no material facts are in dispute, all needed information is filed with the petition, and the owner waives his/her right to a hearing in any of the following circumstances:
(1) The owner submits an agreement with the petition which is signed by the parties in accordance with Section 1232 of these Regulations.
(2) The unit(s) included in the petition are vacant.
(3) The tenant(s) fails to file a response to the petition within thirty-five (35) days of the date the response form is mailed to the tenant(s).
(D) Hearing Procedure
The procedure governing hearings and appeals in individual rent adjustment petitions set forth in Sections 1221-1259 of these regulations shall apply to petitions to obtain previously lost AGA's. The following additional procedures shall also apply:
(1) If the increase requested exceeds 20% of the current rent and the tenant shows by a preponderance of the evidence it would cause undue financial hardship if taken at once, the Hearing Examiner shall grant a phased-in rent increase for the amount over 20%, in equal installments for a period up to three years.
(2) If the tenant establishes that the owner has not refunded rent overcharges for the unit, or that the building is not in substantial compliance with registration requirements, that the affected unit is not in substantial compliance with housing, health and safety codes, these issues shall be fully adjudicated in the course of the hearing on the petition to obtain previously lost AGA's and the Hearing Examiner shall make the appropriate order pursuant to Chapter 12 of these regulations.
(3) The decision will be issued within sixty (60) days of hearing, unless the time is extended for good cause at the owner's request.
[Regulation 1278 effective January 12, 1990 and amended December 27, 1998.]