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Owner Occupancy Holdovers
A very common tactic if for the landlord to seek an eviction
of a Rent Stabilized tenant in New York based on an allegation that the
landlord intends to use the apartment for his own use. This owner use
holdover is the most unpredictable kind of holdover, because once all
the facts are in, it is up to the judge to make a gut determination of
whether the landlord honestly wishes to use the apartment for the reason
he states.
In an owner use holdover, the landlord generally states
that a relative wishes to move into the apartment. The landlord can also
claim that he needs the apartment because his family is larger and needs
more space, and the apartment is part of an overall renovation plan. Still
others have gotten creative, and have alleged that they seek to evict
the rent stabilized tenant because the space would make a nice library
or den.
A savvy tenant has many tools available to defend an owner
use holdover. First, the tenant's attorney has the right to conduct discovery.
This means that the landlord has to answer questions under oath in front
of a court stenographer, and has to produce documentation of its plans.
Second, it is likely that housing court judges are more skeptical of a
landlord whose plans seem to be based on luxury more than necessity. The
truth is, however, that it all boils down to whether the landlord has
a good faith intent to carry out its plan, or whether this is just a sham
to evict a rent stabilized tenant for financial reasons.
Some of the technical rules are set forth in the DHCR Fact
Sheet, quoted below.
New York State Division of Housing and Community Renewal,
Office of Rent Administration
Fact Sheet #10 - Eviction from an Apartment Based
on Owner Occupancy
An owner may refuse to renew a rent stabilized tenant's
lease in NYC because the owner wants the apartment for personal use and
occupancy as a primary residence for the owner or a member of the owner's
immediate family. Under the Rent Stabilization Law, an owner may begin
an eviction proceeding when the current lease expires, but only after
the tenant is given written notice that the lease will not be renewed.
This notice must be served at least 90 and not more than 150 days before
the current lease term expires.
According to the Rent Stabilization Law, only one of the
individual owners of a building can take possession of one or more dwelling
units for personal or immediate family use and occupancy, even if the
building has joint or multiple ownership.
If after an owner recovers possession of the apartment,
the owner does not use the apartment(s) as the owner's or an immediate
family member's primary residence for three years, the owner may lose
the right to any rent increases for other apartments in that building
for three years.
For rent stabilized apartments outside NYC and for rent
controlled apartments statewide, the owner must apply to DHCR for an order
granting a certificate of eviction by filing an "Owner's Application
for Order Granting Approval to Refuse Renewal of Lease and/or to Proceed
for Eviction for Owner Occupancy" (DHCR Form RA-54). An owner must
establish an immediate and compelling need for the apartment. If DHCR
grants this certificate, the owner may then proceed in court to evict
the tenant.
Additional rules apply to senior citizens and disabled persons
concerning evictions based on owner occupancy:
An owner cannot evict a tenant from a rent stabilized apartment
in NYC if the tenant or the spouse of the tenant is a senior citizen,
62 years or older, or is a disabled person unless the owner provides an
equivalent or superior apartment at the same or lower rent in a nearby
area.
An owner cannot evict a tenant from a rent stabilized apartment outside
of NYC or a rent controlled apartment statewide when a member of the household
lawfully occupying the apartment is a senior citizen, 62 years or older;
or, is a disabled person, or is any person who has been a tenant in the
building for 20 years or more.
For more information or assistance, call the DHCR Rent InfoLine (718-739-6400)
or visit your Borough or County Rent Office.
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