N.Y. Comp. Codes R. & Regs. tit. 9 § 2500.9

Current through Register Vol. 46, No. 22, May 29, 2024

Section 2500.9 - Housing accommodations subject to regulation

This Chapter shall apply to all or any class or classes of housing accommodations in a city, town or village for which a declaration of emergency has been made except the following:

(a) housing accommodations subject to the emergency housing rent control law;

(b) housing accommodations owned or operated by the United States, the State of New York, any political subdivision, agency or instrumentality thereof, any municipality or any public housing authority;

(c) housing accommodations in buildings in which rentals are fixed by or subject to the supervision of the State Division of Housing and Community Renewal under other provisions of law or the New York State Urban Development Corporation, New York State Housing Finance Agency or other governmental agencies or public benefit corporations of the City or State or, to the extent that regulation under this act is inconsistent therewith aided by government insurance under any provision of the National Housing Act. However, housing accommodations in buildings completed or substantially rehabilitated prior to January 1, 1974, and whose rentals were previously regulated under the PHFL or any other State or Federal Law, shall become subject to the ETPA and this Title, upon the termination of such regulation;

(d)

(1) housing accommodations in a building containing fewer than six dwelling units, or fewer than such other, larger threshold number of units as the local legislative body, in its determination of emergency as specified in section 2500.8 of this Part, may have chosen;

(2) for purposes of this subdivision, a building shall be deemed to contain six or more dwelling units if it is part of a multiple family garden-type maisonette dwelling complex containing six or more dwelling units having common facilities such as a sewer line, water main or heating plant and operated as a unit under common ownership, notwithstanding that certificates of occupancy were issued for portions therefor as one- or two-family dwellings;

(e) housing accommodations in buildings completed or buildings substantially rehabilitated as family units on or after January 1, 1974, except such buildings which are made subject to this Subchapter by provision of the act or any other statute that meet the following criteria, which at the division's discretion, may be effectuated by Operational Bulletin;

(1) a specified percentage, of at least 75% of listed building-wide and apartment systems, must have been replaced;

(2) the rehabilitation must have been commenced in a building that was in a substandard or seriously deteriorated condition. Space converted from non-residential use to residential use shall not be required to have been in substandard or seriously deteriorated condition for there to be a finding that the building has been substantially rehabilitated;

(3) the division will not find the building to have been in a substandard or seriously deteriorated condition where it can be established that the owner has attempted to secure a vacancy by an act of arson resulting in criminal conviction of the owner or the owner's agent, or the division or other government entity has made a finding of harassment, as defined pursuant to any applicable rent regulatory law, code or regulation. If there has been a finding of harassment by a governmental entity other than the division, that finding shall be considered in full force for three years from the date the finding was made, unless proof of its being lifted is provided or otherwise obtained;

(4) in order for there to be a finding of substantial rehabilitation, all building systems must comply with all applicable building codes and requirements, and the owner must submit copies of the building's certificate of occupancy, if such certificate is required by law, before and after the rehabilitation;

(5) occupied rent regulated housing accommodations have not been rehabilitated, such housing accommodations shall remain regulated until vacated, notwithstanding a finding that the remainder of the building has been substantially rehabilitated, and therefore qualifies for exemption from regulation;

(6) where, because of the existence of hazardous conditions in his or her housing accommodation, a tenant has been ordered by a governmental agency to vacate such housing accommodation, and the tenant has received a court order or an order of the division that provides for payment by the tenant of a nominal rental amount while the vacate order is in effect, and permits the tenant to resume occupancy without interruption of the rent stabilized status of the housing accommodation upon restoration of the housing accommodation to a habitable condition, such housing accommodation will be excepted from any finding of substantial rehabilitation otherwise applicable to the building. However, the exemption from rent regulation based upon substantial rehabilitation will apply to a housing accommodation that is subject to a right of reoccupancy, if the returning tenant subsequently vacates, or if the tenant who is entitled to return pursuant to court or division order chooses not to do so and expresses such intent not to return in writing. The DHCR may waive the requirement that the tenant expresses a desire not to return in writing at its discretion if the owner demonstrates that the tenant could not be found after the owner undertook a good faith effort to locate and contact them, and the tenant has failed to make the nominal rent payment for a period of at least six months;

(7) when an accommodation has been rendered uninhabitable and the tenant has received an order as described in paragraph (6) of this subdivision, the owner will restore the building to a layout that is substantially similar to the building layout prior to the building being rendered uninhabitable, unless the owner can demonstrate that doing so would be financially infeasible. If the owner does not restore the building to a layout that is substantially similar, tenants with orders described in paragraph (6) of this subdivision may, at their discretion, either accept a demolition stipend of an amount determined pursuant to Section 2504.4(f)(2)(ii)(c) of these Regulations or begin an ETPA rent regulated tenancy in a re-configured accommodation. In the event a tenant elects to move into a reconfigured accommodation, the rent may be determined based on local comparable ETPA regulated rents;

(8) an owner may apply to the division for an advisory prior opinion that the building will qualify for exemption from rent regulation on the basis of substantial rehabilitation, based upon the owner's rehabilitation plan;

(9) specified documentation will be required from an owner in support of a claim of substantial rehabilitation;

(10) the Applicant's lack of evidence for any reason, including passage of time, does not excuse the Applicant's obligation to substantiate the application as required by this section and any related operational bulletins.

(f) housing accommodations owned, operated, or leased or rented pursuant to governmental funding, by a hospital, convent, monastery, asylum, public institution, or college or school dormitory or any institution operated exclusively for charitable or educational purposes on an on profit basis, other than accommodations occupied by a tenant on the date such housing accommodation is acquired by such institution, or which are occupied subsequently by a tenant whose initial occupancy is contingent upon an affiliation with such institution however, the following housing accommodations shall be subject to the ETPA and this act:

(1) housing accommodations occupied by a tenant on the date such housing accommodation is acquired by any such institution, or which are occupied subsequently by a tenant who is not affiliated with such institution at the time of his initial occupancy or

(2) permanent housing accommodations with government contracted services, as of and after June fourteenth, two thousand nineteen, occupied by vulnerable individuals or individuals with disabilities who are or were homeless or at risk of homelessness. For the purposes of this subdivision (and subdivision 2500.9f k), such vulnerable individuals or individuals with disabilities as described here in shall be considered to be tenants;

(g) rooms or other housing accommodations in hotels;

(h) any motor court, or any part thereof, any trailer, or trailer space used exclusively for transient occupancy or any part thereof; or any tourist home serving transient guests exclusively, or any part thereof;

(1) the term motor court shall mean an establishment renting rooms, cottages or cabins, supplying parking or storage facilities for motor vehicles in connection with such renting and other services and facilities customarily supplied by such establishments, and commonly known as motor, auto or tourist court in the community;

(2) the term tourist home shall mean a rooming house which caters primarily to transient guests and is known as a tourist home in the community;

(i) non housekeeping, furnished housing accommodations, located within a single dwelling unit not used as a rooming or boarding house, but only if:

(1) no more than two tenants for whom rent is paid (spouses being considered one tenant for this purpose), not members of the landlord's immediate family, live in such dwelling unit; and

(2) the remaining portion of such dwelling unit is occupied by the landlord or his immediate family;

(j) housing accommodations in buildings operated exclusively for charitable purposes on an on profit basis; however such housing accommodation shall be subject to the ETPA and this act if they are permanent housing accommodations with government contracted services, as of and after the effective date of the chapter of the laws of June fourteenth, two thousand nineteen that amended this paragraph, for vulnerable individuals or individuals with disabilities who are or were homeless or at risk of homelessness. For the purposes of this subdivision (and subdivision 2500.9(k)), such vulnerable individuals or individuals with disabilities as described here in shall be considered to be tenants;

(k) housing accommodations which are not occupied by the tenant in possession as his primary residence. For the purposes of determining primary residency, a tenant who is a victim of domestic violence, as defined in section four hundred fifty-nine-a of the social services law, who has left the unit because of such violence, and who asserts an intent to return to the housing accommodation shall be deemed to be occupying the unit as his or her primary residence. In addition, a tenant who has left the housing accommodation and is paying a nominal rent pursuant to Part 2500.9(e)(6) of this Title shall be deemed to be occupying the unit as his or her primary residence;

(l) housing accommodations contained in buildings owned as cooperatives or condominiums, which are or become vacant on or after July 7, 1993, except that this subdivision shall not apply to units occupied by non-purchasing tenants under section 352-eee of the General Business Law until the occurrence of a vacancy:

(1) provided, however, and subject to the limitations set forth in subdivision (e) of this section, that:

(i) where cooperative or condominium ownership of such building no longer exists ("deconversion"), because the cooperative corporation or condominium association loses title to the building upon a foreclosure of the underlying mortgage or otherwise such housing accommodations shall revert to regulation pursuant to the act and this Subchapter, and the legal regulated rents therefor shall be as follows:

(a) Housing accommodations not occupied at the time of deconversion:

(1) where deconversion occurs six years or more after the effective date of the Conversion Plan, the initial regulated rent shall be as agreed upon by the parties and reserved in a vacancy lease;

(2) where deconversion occurs within six years after the effective date of the conversion plan, the initial regulated rent shall be the most recent legal regulated rent for the housing accommodation increased by all lawful adjustments that would have been permitted had the housing accommodation been continuously subject to the act and this Subchapter;

(3) initial regulated rents established pursuant to subclause (1) of this clause shall not be subject to challenge as a fair market rent appeal;

(4)

(i) Within 30 days after deconversion, the new owner taking title upon deconversion shall offer a vacancy lease, at an initial regulated rent established pursuant to this clause, to the holder of shares formerly allocated to the housing accommodation in the case of cooperative ownership, or the former unit owner in the case of condominium ownership. Such shareholder or former unit owner shall have 90 days to accept such offer by entering into the vacancy lease. Failure to enter into such lease shall be deemed to constitute a surrender of all rights to the housing accommodation;

(ii) no individual former owner or proprietary lessee shall be entitled to occupy more than one housing accommodation;

(b) Housing accommodations occupied at the time of deconversion and not subject to regulation under this Subchapter at such time;

(1) where the housing accommodation is occupied by a holder of shares formerly allocated to it in the case of cooperative ownership, or by the former owner of such unit in the case of condominium ownership, such shareholder or former unit owner shall be offered a new vacancy lease, subject to regulation under this Subchapter, by the new owner taking title upon deconversion, which lease shall be subject to all of the terms and conditions set forth in subparagraph (i) of this paragraph pertaining to the establishment of initial regulated rents and lease offers;

(2) where the housing accommodation is occupied by a current renter pursuant to a sublease with the holder of shares formerly allocated to it in the case of cooperative ownership, or to the former owner of such unit in the case of condominium ownership, the new owner shall offer a vacancy lease to such holder of shares or former unit owner pursuant to all of the terms and conditions set forth in subparagraph (i) of this paragraph;

(3) all shareholders or former unit owners described in this clause shall be offered a vacancy lease within 30 days after the deconversion, and shall have 90 days to accept such offer. However, in the event such shareholder or former unit owner does not enter into the vacancy lease, he or she shall be deemed to have surrendered all rights to the housing accommodation effective 120 days after the failure to accept such offered vacancy lease.

(c) Housing accommodations occupied pursuant to regulation under this Subchapter or the State Rent and Eviction Regulations by non-purchasing tenants immediately prior to deconversion. The regulated rents for such housing accommodations shall not be affected by the deconversion, and such accommodations shall remain fully subject to all provisions of this Subchapter or the State Rent and Eviction Regulations, whichever is applicable.

(d)

(1) Where it determines that the owner taking title at deconversion caused, in whole or in part, the deconversion to occur, the initial legal regulated rent shall be established by the division pursuant to sections 2502.3(b) and 2502.6 of this Title. In such cases, subdivision (m) of this section shall not apply.

(2) Upon deconversion, housing accommodations in localities subject to this Subchapter which were last subject to regulation pursuant to the State Rent and Eviction Regulations and were decontrolled prior to or pursuant to the conversion shall become subject to regulation under this Subchapter pursuant to this paragraph. In such cases, the initial legal regulated rent shall be established by the division pursuant to sections 2502.3(b) and 2502.6 of this Title.

(2) housing accommodations that were subject to regulation under this Subchapter or the State Rent and Eviction Regulations immediately prior to conversion to cooperative or condominium ownership by virtue of the receipt of tax benefits pursuant to applicable law shall revert to regulation under this Subchapter as is required by applicable law;

(3) where cooperative or condominium ownership of such building no longer exists (deconversion) where the conversion of the building to cooperative or condominium ownership is revoked by the New York State Attorney General, such housing accommodations shall revert to regulation pursuant to this Subchapter and this regulation, and the legal regulated rents therefore shall be an amount set forth by the Attorney General by order or negotiated settlement. If deconversion occurs due to an action by the Attorney General and the Attorney General does not set rents, the rent for the housing accommodation shall be the lowest rent determined by the most recent legal regulated rent for the housing accommodation immediately prior to the conversion, increased by all lawful adjustments that would have been permitted had the housing accommodation been continuously subject to the State Rent and Eviction Regulations, or by the methods set forth in section 2502.6(a)(2) of this Title

(m)

(1) Effective June 14, 2019, high rent vacancy deregulation is no longer applicable. Any apartment that was lawfully deregulated pursuant to McKinney's Unconsolidated Law Section 8625(a)(12), shall remain deregulated, notwithstanding that such Section was repealed by Chapters 36 and 39 of the Laws of 2019.

(n) upon the issuance of an order by the division pursuant to the procedures set forth in Part 2511 of this Title, including orders resulting from default, housing accommodations which:

(1) Effective June 14, 2019, high rent high income deregulation is no longer applicable. Any apartment that was lawfully deregulated pursuant to McKinney's Unconsolidated Law Section §8625(a)(13) shall remain deregulated, notwithstanding that such Section was repealed pursuant to Chapters 36 and 39 of the Laws of 2019. For the purposes of this subdivision, lawful deregulation shall be defined as the issuance of an order by the division pursuant to the procedures set forth in ETPA §8625(a)(13), as otherwise repealed by Chapters 36 and 39 of the Laws of 2019, and the expiration of the lease in effect upon issuance of such order expiring prior to June 14, 2019.

(2) Effective June 14, 2019, no further high rent high income deregulation proceedings pursuant to this Title may be commenced, and all pending applications shall be dismissed as not subject to deregulation. For the purposes of this paragraph, an application shall not be considered pending if the subject housing accommodation was lawfully deregulated pursuant to such application prior to June 14, 2019, and such lawful deregulation is subject to review as of June 14, 2019 in a Court of competent jurisdiction, before the commissioner pursuant to a petition for administrative review, or before the rent administrator subsequent to a remand for further consideration by either the commissioner or a court.

(o) housing accommodations occupied by domestic servants, superintendents, caretakers, managers or other employees to whom the space is provided as part or all of their compensation without payment of rent and who are employed for the purpose of rendering services in connection with the premises of which the housing accommodation is a part;

(p) housing accommodations used exclusively for professional, commercial, or other nonresidential purposes;

(q) housing accommodations in buildings completed or substantially rehabilitated as family units on or after January 1, 1974 or located in a building containing less than six housing accommodations, or fewer than such other, larger threshold number of units as the local legislative body, in its determination of emergency as specified in section 2500.8 of this Part, may have chosen, and which were originally made subject to regulation solely as a condition of receiving tax benefits pursuant to section 421-c of the Real Property Tax Law, as amended, and a period of ten years has passed;

(r) housing accommodations exempted pursuant to any other provision of law.

(s) Between January 8, 2014 and June 14, 2019, where the owner of any housing accommodation claims that such housing accommodation was not subject to this Subchapter pursuant to the provisions of subdivision (m) of this section or of section 2100.9(v)of the State Rent and Eviction Regulations, such owner must have given written notice certified by such owner on a form promulgated by the division to the first tenant of that housing accommodation after such housing accommodation is claimed to become exempt from the provisions of this Subchapter or the act. Such form notice must have contained the last regulated rent, the reason that such housing accommodation is not subject to this Subchapter or the act, a calculation of how either the rental amount charged when there is no lease or the rental amount provided for in the lease has been derived so as to reach the applicable amount qualifying for deregulation pursuant to subdivision (m) of this section (whether the next tenant in occupancy or any subsequent tenant in occupancy actually is charged or pays less than the applicable amount qualifying for deregulation), a statement that the last legal regulated rent or the maximum rent may be verified by the tenant by contacting the division at the address and telephone number of the division. Such form notice was required to be sent by certified mail within thirty days after the tenancy commences or after the signing of the lease by both parties, whichever occurs first or delivered to the tenant at the signing of the lease. The owner was required to send and certify to the tenant a copy of the registration statement for such housing accommodation filed with the division indicating that such housing accommodation became exempt from the provisions of this Subchapter or the act, which registration statement form shall include the last regulated rent be sent to the tenant within thirty days after the tenancy commences or the filing of such registration, whichever occurs later.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 2500.9

Amended New York State Register November 8, 2023/Volume XLV, Issue 45, eff. 11/8/2023