Personal Use Holdovers
PERSONAL USE HOLDOVERS
Under both the Rent Control Law and the Rent Stabilization Law, a landlord can recover possession of an apartment or an unlimited number of apartments in a building for his or her personal use and occupancy or an immediate family member’s personal use and occupancy, as long as good faith intent to use the premises as a primary residence is established.
1. Landlord Must Be A Natural Person
To recover an apartment in a personal use proceeding, under both the Rent Control Law and the Rent Stabilization Law, the landlord must be a natural person, rather than a corporation or partnership.
2. Rent Stabilization Law
• A landlord can recover possession of a rent stabilized apartment for the:
o owner’s personal use and occupancy; or
o personal use and occupancy of a member of his or her immediate family as his or her primary residence in the City of New York.
• The landlord of an apartment can refuse to renew the lease on the basis that he or she wants to personally use and occupy the apartment. The landlord must notify the tenant of the intent not to renew the lease in the period during which a renewal lease must be offered.
• Only one individual owner of a building can seek recovery for personal use and occupancy, but the owner can recover possession of one or more units in a building.
• The application for recovery of an apartment for personal use and occupancy must be made in good faith and the non-renewal notice must state the facts underlying the landlord’s decision to recover for personal use.
• Evidence of bad feelings between the landlord and the tenant may be sufficient to show that the good faith requirement has not been met.
• An eviction proceeding for the owner’s personal use and occupancy can only be brought after expiration of the relevant lease.
• If the landlord recovers possession of the unit in an eviction proceeding based on personal use, the person for whom possession was sought must occupy the unit for three years.
3. Rent Control Law
• A landlord must obtain DHCR approval and a certificate of eviction in order to recover a rent controlled apartment for personal use by the owner. The owner must then bring a proceeding in Housing Court seeking a judgment and warrant of eviction.
• To obtain a certificate of eviction from DHCR, the landlord must show that he or she “seeks in good faith to recover possession of a housing accommodation because of immediate and compelling necessity for his own personal use and occupancy, or for the use and occupancy of his immediate family”.
4. Immediate Family
‘Immediate family’ means a spouse, child or stepchild, parent or stepparent, parent-in-law, sibling or sibling-in-law, grandparent or grandchild of the owner.
5. Tenant Protections
The rent regulation laws protect certain tenants from eviction from their apartment where their landlord seeks the unit for personal use and occupancy.
a. Advanced Age
• If the tenant or a household member is 62 years of age or older, the household cannot be evicted from the dwelling unit so that the landlord can recover it for personal use and occupancy.
• A person is protected if they turn 62 before the eviction proceedings are finally determined or if they marry a household member over the age of 62 after a holdover proceeding has been commenced.
• If the tenant or tenant’s spouse is disabled, the household cannot be evicted from the dwelling unit so that the landlord can recover it for personal use and occupancy.
• The term ‘spouse’ applies to both traditional and non-traditional families.
• The definition of a disabled person is a person with “an impairment which results from anatomical, physiological or psychological conditions…which are expected to be permanent and which prevent such person from engaging in any substantial gainful employment”.
• It has been held that a person of low intellect is “disabled” for the purposes of the Rent Stabilization Code.
c. Long Tenancy
• If a rent controlled tenant or household member has lived in the building for 20 years or longer, the household cannot be evicted from a dwelling unit for the landlord’s personal use and occupancy of the premises.
• A rent stabilized tenant has no official protection under the 20-year rule, therefore it is important to ascertain the client’s age because they may be protected by virtue of their senior citizen status.
• If the landlord can establish that he or she is entitled to the unit for personal use and occupancy, but the tenant is protected from eviction because he or she is elderly, disabled or a long-term resident, the landlord has the option of providing the tenant with a substantially similar apartment at the same rent and paying the tenant’s moving expenses and reasonable costs of redecoration.
• It is uncertain whether or not an owner, who has knowledge of a tenant’s age or condition, should offer alternative housing prior to litigation.
Both the Rent Control Law and the Rent Stabilization Law contain penalty provisions for owners who recover possession of apartments for personal use and occupancy, but who ultimately do not occupy them for that purpose.
The Rent Control Law provides that if the owner does not actually occupy the apartment within 30 days after the tenant leaves, “such landlord shall, unless for good cause shown, be liable to the tenant for three times the damages sustained on account of such removal, plus reasonable attorney’s fees and costs”.
The Rent Stabilization Law provides that an owner’s failure to use the apartment for the intended purpose after the tenant vacates, or who does not continue in occupancy for three years, “may result in a forfeiture of the right to any increases in the legal regulated rent in the building in which such housing accommodation is contained for a period of three years.”