The Borough Administrator, or his or her designee, is hereby
designated to accept all hardship applications filed by a landlord
as set forth under this article. A landlord who is unable to meet
his mortgage payments, expenses and maintenance costs or is operating
at a loss shall be entitled to apply for a hardship increase to the
Borough Administrator, or his or her designee. The Borough Administrator,
or his or her designee, shall supply forms for this purpose and require
the landlord to notify the tenants of the pendency of this hardship
increase application.
At the time of application, the landlord shall notify each tenant
in writing by certified mail or personal service, post a copy of the
application in each building affected, and supply the Borough Administrator,
or his or her designee, with three copies.
The applicant shall, at the time of filing an application under
this article, enclose with the application the fee determined by the
following schedule. The fee shall be payable to the Borough of Highland
Park:
A. Basic fee for all applications: $50.
B. Additional fee for each unit: $25.
The Rent Control Board shall make the determination for all
hardship applications.
A. In determining any hardship application, the Rent Control Board shall
consider financial factors which are to be submitted by the landlord.
The landlord shall submit a profit and loss statement reflecting information
for three years prior to the year of the application. A landlord seeking
an increase in rent shall provide a minimum of financial factors as
indicated on a standardized form provided by the Borough Clerk as
well as any other information pertinent as required under this chapter.
B. The services of a financial consultant shall be provided for to assist
the Rent Control Board in evaluating complicated accounting information.
The financial consulting fees shall be funded through an escrow account
required of landlords making hardship appeals. The escrow shall be
no more than $500 for a landlord of more than 100 rental units and
$250 for landlords of less than 50 units. Any of the escrow funds
not required for consulting fees shall be refunded to the landlord
at the end of the Rent Control Board's consideration of the hardship
increase request.
C. Hardship appeals will be based on a fair rate of return formula which
allows, with just cause, for the maintenance of a dollar net operating
income (NOI) with a cost-of-living increase on that portion of the
NOI which is the profit. Only valid cause for the loss of return of
NOI shall be permitted as the basis for a hardship application hereunder.
D. The landlord shall be required to send notice by certified mail or
hand delivered to each tenant affected by the application, at least
10 days prior to the date scheduled for the hearing before the Rent
Control Board on the hardship application. In addition, the landlord
shall publish notice of the hardship hearing one time at least 10
days prior to the hearing in a newspaper of general circulation within
the Borough. Following the Rent Control Board's decision, the
landlord, by certified mail or hand delivery, shall advise each of
the tenants as to the outcome of the hardship increase hearing within
10 days of the date of the Rent Control Board's determination.
Additionally, the landlord shall publish notice of the Rent Control
Board's decision in a newspaper of general circulation within
the Borough within 10 days of the Rent Control Board's determination.
The Rent Control Board shall make a decision on any application within
45 days from the conclusion of the Board's hearing of the application.
E. In applying the NOI determination referenced hereinabove, the Rent
Control Board shall consider:
(1) The additional debt requirements attributable to necessary refinancing
will be permitted only at the expiration of the original term of the
landlord's mortgage and if the Rent Control Board determines
that the mortgage payments result from refinancing terms which are
commercially reasonable under the circumstances.
(2) In determining the NOI, applying the cost of refinancing of the original
mortgage, the Rent Control Board shall not consider the refinancing
of junior mortgages.
(3) In a circumstance where a new apartment owner is in a negative cash
flow position, the criteria to be used by the Rent Control Board is
whether the mortgage payments resulted from a capitalization debt-equity
ratio that is commercially reasonable and is reasonably related to
the acquisition of the apartment for rental purposes.
In determining whether a landlord is entitled to a hardship
increase, the Borough Administrator, or his or her designee, shall
consider the landlord's ability to meet expenses and a fair and
reasonable return on his/her property. A landlord shall be eligible
for consideration for a hardship increase if:
A. He/She has been the owner of the building for a twelve-month period
preceding the filing of such application. Certified public accountant
records must be submitted with said application, and the Board may
consider all reasonable factors as to the prudence of said investment
in determining whether or not a hardship shall be granted;
B. He/She can demonstrate that the building is in substantial compliance
with all relevant property and maintenance provisions in this chapter;
C. The following factors shall be considered in determining the fairness
and reasonableness of the landlord's rate of return:
(2) Costs of efficient maintenance and operation of the property;
(3) The kind, quality, quantity and efficiency off the services being
rendered;
(4) The number and frequency of prior hardship and capital improvement
increases for the building;
(5) The reasonableness of expenses incurred by the landlord expended
for capital improvements;
(6) Present tax and tax appeal status; and
(7) Discretion of hearing officers may be considered.
Upon scheduling of hearings, the Borough Administrator, or his
or her designee, shall give notice of the same to each affected tenant,
five days prior thereto. All documentation submitted shall be open
to inspection by affected tenants or their legal representatives.
Any such notice delivered to the tenant shall include a statement
that all such documentation is available for inspection at the office
of the Borough Clerk. Requests for the appearance of any real estate
appraiser, either by the landlord or the affected tenant, shall be
made, in writing, two days prior to the hearing date to the Borough
Administrator, or his or her designee, and the parties. Failure to
request the presence of said appraiser shall be deemed to have waived
the right of his cross-examination by the party.