N.Y. Comp. Codes R. & Regs. tit. 9 § 2104.6

Current through Register Vol. 46, No. 15, April 10, 2024

Section 2104.6 - Tenant not using premises for own dwelling

(a) A certificate shall be issued for the eviction of the tenant and subtenants where the landlord seeks in good faith to recover possession of housing accommodations for which the tenant's lease or other rental agreement has expired or otherwise terminated, and at the time of termination the occupants of the housing accommodations are subtenants or other persons who occupied under a rental agreement with the tenant, and no part of the accommodations is used by the tenant as his dwelling.

(b) No tenant shall be evicted under this section where the premises are operated as a rooming house and the eviction of the tenant will result in the removal of the furniture and furnishings used by the occupants, unless the landlord establishes that substantially similar furniture and furnishings will be provided at the time of the removal and that arrangements will be made for the occupants to remain in occupancy under substantially the same terms and conditions as those existing on the date of the issuance of the certificate.

(c) No occupant of housing accommodations, other than the tenant, shall be evicted under this section, where the rental agreement between the landlord and tenant contemplated the subletting by the tenant of the entire accommodations or a substantial portion thereof.

(d)

(1) Unless otherwise prohibited by occupancy restrictions based upon income limitations pursuant to Federal, State or local law, regulations or other requirements of governmental agencies, notwithstanding the provisions of subdivision (a) of this section, the commission shall not issue an order granting a certificate of eviction, and any member of the tenant's family, as defined in paragraph (3) of this subdivision, shall not be evicted under this section where the tenant has permanently vacated, as defined in paragraph (3) of this subdivision, the housing accommodation and such family member has resided with the tenant in the housing accommodation as a primary residence for a period of no less than two years, or where such person is a "senior citizen" or a "disabled person," as defined in paragraph (3) of this subdivision, for a period of no less than one year, immediately prior to the permanent vacating of the housing accommodation by the tenant, or from the inception of the tenancy or commencement of the relationship, if for less than such periods.

(2) On a form prescribed or a facsimile of such form approved by the commission, a tenant may, at any time, advise the landlord of, or a landlord may at any time, but no more often than once in any 12 months, request from the tenant, the names of all persons other than the tenant who are residing in the housing accommodation, and the following information pertaining to such persons:

(i) if the person is a "family member" as defined in paragraph (3) of this subdivision; and

(ii) if the person is, or upon the passage of the applicable minimum period of required residency, may become a person entitled to protection from eviction pursuant to paragraph (1) of this subdivision, and the date of the commencement of such person's primary residence with the tenant; and

(iii) if the person is a "senior citizen" or a "disabled person" as defined in paragraph (3) of this subdivision.

Failure of the tenant to provide such information to the landlord, regardless of whether the landlord requests the information, shall place upon all such persons not so made known to the landlord, who seek to exercise the right to protection from eviction as provided for in this subdivision, the affirmative obligation to establish such right.

(3) For the purposes of this subdivision:

(i) family member is defined as a spouse, son, daughter, stepson, stepdaughter, father, mother, stepfather, stepmother, brother, sister, grandfather, grandmother, grandson, granddaughter, father-in-law, mother-in-law, son-in-law, or daughter-in-law of the tenant; or any other person residing with the tenant in the housing accommodation as a primary residence who can prove emotional and financial commitment, and interdependence between such person and the tenant. Although no single factor shall be solely determinative, evidence which is to be considered in determining whether such emotional and financial commitment and interdependence existed, may include, without limitation, such factors as listed below. In no event would evidence of a sexual relationship between such persons be required or considered.

(a) longevity of the relationship;

(b) sharing of or relying upon each other for payment of household or family expenses, and/or other common necessities of life;

(c) intermingling of finances as evidenced by, among other things, joint ownership of bank accounts, personal and real property, credit cards, loan obligations, sharing a household budget for purposes of receiving government benefits, etc.;

(d) engaging in family-type activities by jointly attending family functions, holidays and celebrations, social and recreational activities, etc.;

(e) formalizing of legal obligations, intentions, and responsibilities to each other by such means as executing wills naming each other as executor and/or beneficiary, conferring upon each other a power of attorney and/or authority to make health care decisions each for the other, entering into a personal relationship contract, making a domestic partnership declaration, or serving as a representative payee for purposes of public benefits, etc.;

(f) holding themselves out as family members to other family members, friends, members of the community or religious institutions, or society in general, through their words or actions;

(g) regularly performing family functions, such as caring for each other or each other's extended family members, and/or relying upon each other for daily family services;

(h) engaging in any other pattern of behavior, agreement, or other action which evidences the intention of creating a long-term, emotionally committed relationship;

(ii) a senior citizen is defined as a person who is 62 years of age or older;

(iii) a disabled person is defined as a person who has an impairment which results from anatomical, physiological or psychological conditions, other than addiction to alcohol, gambling, or any controlled substance, which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques, and which are expected to be permanent and which substantially limit one or more of such person's major life activities.

(iv) A tenant shall be considered to have permanently vacated the subject housing accommodation when the tenant has permanently ceased residing in the housing accommodation. The continued payment of rent by the tenant or the signing of renewal leases shall not preclude a claim by a family member as defined in paragraph (3) of this subdivision in seeking tenancy.

(4) For the purpose of determining whether a landlord may charge the increase in maximum collectable rent authorized pursuant to subdivision 9 of section 5 of the act, such landlord shall periodically inform the commission, in a manner prescribed by the commission, whether the tenant occupying the housing accommodation at the time such notice is given is a family member, as defined in subparagraph (3)(i) of this subdivision, who has established the right to protection from eviction pursuant to paragraph (1) of this subdivision. Information that may be required by the commission shall include, but is not limited to the commencement date of such family member's primary residence in the housing accommodation with the immediately preceding tenant of record. Failure of a landlord to give such notice shall not deprive the landlord of the right to collect such sum, but shall place upon the landlord the affirmative obligation to establish that right in the event that entitlement thereto is challenged.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 2104.6

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