N.Y. Comp. Codes R. & Regs. tit. 9 § 2104.5

Current through Register Vol. 46, No. 17, April 24, 2024

Section 2104.5 - Occupancy by landlord or immediate family

(a)

(1) A certificate shall be issued where the landlord seeks in good faith to recover possession of a housing accommodation because of immediate and compelling necessity for their own personal use and occupancy as their primary residence or for the use and occupancy of their immediate family as their primary residence. As used in this subdivision, the term immediate family includes only a spouse, son, daughter, stepson, stepdaughter, father, mother, stepfather, stepmother, brother, sister, grandfather, grandmother, grandson, granddaughter, father-in-law, mother-in-law, or daughter-in-law of the landlord.

(2) The provisions of this subdivision shall permit recovery of only one housing accommodation and shall not apply where a tenant lawfully occupying the housing accommodation is 62 years of age or older, has been a tenant in a housing accommodation in that building for fifteen years or more, or 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 prevent the tenant from engaging in any substantial gainful employment. A tenant required to surrender a housing accommodation by virtue of the operation of subdivision 2(a) of section 8585 of the Emergency Housing Rent Control law shall have a cause of action in any court of competent jurisdiction for damages, declaratory, and injunctive relief against a landlord or purchaser of the premises who makes a fraudulent statement regarding a proposed use of the housing accommodation. In any action or proceeding brought pursuant to this subdivision a prevailing tenant shall be entitled to recovery of actual damages, and reasonable attorneys' fees.

(b) Where the housing accommodation is located in a structure or premises which contain more than two housing accommodations, and the housing accommodations or structure or premises are owned by two or more persons not constituting a cooperative corporation or association ( spouses as owners being considered one owner for this purpose), no certificate shall be issued under this section for occupancy of any housing accommodation in such structure or premises where two housing accommodations are already owner-occupied as a result of certificates of eviction.

(c)

(1) In the case of a housing accommodation in a structure or premises owned by a cooperative corporation or association, a certificate shall be issued by the administrator to a purchaser of stock where (i) the tenant originally obtained possession of the housing accommodation by virtue of a rental agreement with the tenant-owner; or (ii) the stock was acquired by the purchaser prior to July 1, 1955 and more than two years prior to the date of the filing of the application; or (iii) the stock was acquired by the purchaser on or after July 1, 1955 and more than two years had expired since the date of filing the notice of sale with the local rent office as hereafter provided in subparagraph (3)(v) of this subdivision; or (iv) the stock was acquired less than two years prior to the date of filing of the application and on that date stock in the cooperative has been purchased by persons who are tenant-owners of at least 80 percent of the housing accommodations in the structure or premises and are entitled by reason of stock ownership to proprietary leases of housing accommodations in the structure or premises; or (v) the cooperative was organized and acquired its title or leasehold interest in the structure or premises before February 17, 1945 and on that date stock in the cooperative allocated to 50 percent or more of the housing accommodations in the structure or premises was held by individual tenant-owners, who are or whose assignees or subtenants are in occupancy of such housing accommodations in the structure or premises at the date of the filing of the application.

(2) No certificate of eviction shall be issued under paragraph (1) of this subdivision unless the applicant shall establish that he has complied with the requirements of subdivisions (a) and (d) of this section;

(3) No certificate of eviction shall be issued under paragraph (1) of this subdivision, except as provided in paragraph (4) of this subdivision, unless the applicant shall also establish that the cooperative corporation or association has complied with the following requirements:

(i) On the date the cooperative plan was first presented to the tenants, each tenant in occupancy of a controlled housing accommodation in the premises was furnished with a copy of the plan and notified in writing that he had the exclusive right for a period of 60 days to purchase the stock allocated to his housing accommodation at the specified price, and that the plan would not be declared effective, unless on or before December 31, 1955 or within six months from the time the cooperative plan was presented to such tenants, whichever date is later, stock in the cooperative had been sold in good faith without fraud or duress, and with no discriminatory repurchase agreement or other discriminatory inducement, to at least 35 percent of the tenants in occupancy of controlled housing accommodations at the time of the presentation of the plan. Housing accommodations vacant on the date the plan is presented or subsequently vacated, shall not be included in the computation of the 35 percent requirement except when the vacant housing accommodation is purchased for personal occupancy by a tenant of a controlled housing accommodation.

(ii) Subsequent to the date the cooperative plan had been declared effective, the tenants of controlled housing accommodations had been served with a written notice that the plan had been declared effective, setting forth the terms of sale and the names of the tenants of the controlled housing accommodations who had purchased the stock allocated to their own housing accommodations or to vacant housing accommodations and the names and addresses of other purchasers of vacant housing accommodations; and that the tenants of controlled housing accommodations who had not as yet purchased, still had the exclusive right, for a period of 30 days from the date of service of the notice, to purchase the stock allocated to their housing accommodations on the terms previously offered to the tenants; except where (a) the cooperative plan had been declared effective prior to July 1, 1955, and (b) prior to that date the tenant of a controlled housing accommodation in the premises had received written notice or notices that for a period of not less than 30 days he had the right to purchase the stock allocated to his housing accommodation at the price and terms specified in said plan, and (c) on July 1, 1955 such stock was held or was thereafter reacquired by the cooperative or by a sponsor, nominee of the cooperative or by any other person associated with the formulation of the plan, and (d) such stock was offered after July 1, 1955 for sale for personal occupancy at the same or different terms than previously offered to the tenant of such controlled housing accommodation, the latter was given a written notice of the offer to sell and the the right for a period of 30 days to purchase the stock on the terms specified in such offer.

(iii) Within 10 days from the date of service of the notice provided by subparagraph (ii) the cooperative had filed with the local rent office having jurisdiction a copy of the cooperative plan; a copy of the first notice served upon all tenants of controlled housing accommodations; a copy of the notice required by subparagraph (ii), and a statement, duly verified by an officer of the cooperative and where the sale was made on or after July 1, 1955, a statement duly verified by each purchaser, that the sales had been made in good faith pursuant to the terms set forth in the cooperative plan without fraud or duress and with no discriminatory repurchase agreement or other discriminatory inducement and whether for personal occupancy by the purchaser. A duplicate set of the above specified papers shall also be kept available in the building for inspection by a tenant of controlled housing accommodations or his authorized representative.

(iv) In the event that the stock allocated to a controlled housing accommodation shall be offered for sale by the cooperative, its sponsor, nominees or other persons associated with the formulation of the plan to a purchaser in good faith for his personal occupancy at terms more favorable than those previously offered to the tenant of such controlled housing accommodation, the latter must first be given a written notice of the new terms and 15 days within which to elect to purchase stock at such new terms.

(v) Within 10 days after any sale or resale of stock subsequent to the effective date of the plan, all tenants who had not yet purchased had been served with written notices by the cooperative setting forth the names and addresses of each of the purchasers, the designation of the housing accommodations, and in those cases where the stock had been sold for personal occupancy of the purchaser, the terms of the sales. Copies of these notices, together with proof of service upon each such tenant, must be filed with the local rent office within five days of the date of service. Copies of these notices shall also be kept available in the building for inspection.

(4) Where the cooperative plan was declared effective prior to July 1, 1955, the Administrator shall issue a certificate of eviction to a purchaser who acquired the stock prior to July 1, 1955, if he finds that the requirements of the former subdivision (c) of this section have been met and that the purchaser had served the tenant of the controlled housing accommodation before December 31, 1955, with a written notice setting forth the name and address of the purchaser, designation of the housing accommodation and the terms of the sale. A copy of this notice, together with proof of service upon such tenant, must be filed with the local rent office within five days of the date of service. Where, however, stock allocated to a controlled housing accommodation occupied by a tenant has not in fact been sold prior to July 1, 1955, to a purchaser in good faith for personal occupancy, no certificate of eviction shall be issued unless such tenant had been afforded the rights conferred by subparagraphs (ii), (iii), (iv) and (v) of paragraph (3) of this subdivision. The cooperative must file all documents required in the preceding subparagraphs of paragraph (3) no later than December 31, 1955 or such later date as is applicable.

(5) As used herein, the term tenant-owner includes only:

(i) a person who purchased the stock allocated to a vacant housing accommodation excluding, however, any housing accommodations which had been vacated after the filing of an application for a certificate of eviction or an order of subdivision pursuant to this Subchapter within the one-year period preceding the presentation of the cooperative plan to the tenants; or

(ii) a person who while he was a tenant in occupancy in the building, purchased the stock allocated to his housing accommodation; or

(iii) a person who purchased the stock allocated to a housing accommodation which was occupied by a tenant who obtained his possession from said purchaser of the stock; or

(iv) a person who purchased the stock allocated to a housing accommodation from an owner of such stock who was in occupancy of such housing accommodation; or

(v) a person who purchased the stock allocated to a housing accommodation while it was occupied by a tenant and which thereafter became vacant after voluntary removal by the tenant.

(6) As used herein, the term housing accommodation shall not include servants' rooms which are nonhousekeeping and located in the service portion of the building or apartments not subject to this Subchapter; and the term tenant shall not include the persons occupying such servants' rooms or apartments not subject to this Subchapter.

(7) As used herein, the term stock shall also include other evidence of interest in the cooperative corporation or association with the right to possession of a housing accommodation by virtue of a proprietary lease or otherwise.

(8) As used herein, the term cooperative corporation or association shall also include the sponsor of a cooperative plan.

(9) Where a cooperative plan and any amendments thereof presented to the tenants of controlled housing accommodations is not declared effective and filed with the local rent office pursuant to subparagraphs (ii) and (iii) of paragraph (3) of this subdivision, a period of 18 months from the date of the presentation of the first plan must elapse before another cooperative plan may be presented to the tenants of the structure.

(d) Where the landlord purchased and thereby acquired title to the premises on or after May 1, 1950, or where the landlord acquired his rights in the housing accommodations (other than in a structure or premises owned by a cooperative corporation or association) through an enforceable contract of sale of the real property which meets the minimum requirements of this subdivision, no certificate shall be issued under subdivisions (a), (b) or (c) of this section unless the landlord on or before the date of the filing of the application has made a payment or payments totaling at least 20 percent of the purchase price or the assessed valuation of the premises, whichever is greater; provided, however, that where the Administrator finds that equivalent accommodations are available for rent into which the tenant can move without substantial hardship or loss, or that undue hardship would result to the landlord, a certificate may be issued although less than 20 percent has been paid. This requirement shall not apply where the landlord is a former member of the Armed Forces of the United States of America who obtained a loan for use in purchasing housing accommodations guaranteed in whole or part by the Administrator of Veterans Affairs. The contract of sale of the real property referred to in this subdivision shall:

(1) give the purchaser the right of immediate possession and assign all of the rents and income from the property to the purchaser;

(2) not give the purchaser the right to cancel because of failure to secure occupancy of the premises;

(3) provide that the risk of damage to or destruction to the building on the premises by fire or other cause or casualty shall be the risk of the purchaser, and any such damage or destruction shall not excuse such purchaser from paying the price for the premises nor from performing the other conditions and covenants of the contract;

(4) require the purchaser at all times to keep the buildings on the premises insured for the benefit of the seller in an amount equal to at least the unpaid balance owing under the contract to the seller;

(5) require the purchaser to pay all taxes, assessments, and water rents which shall thereafter be taxed or assessed upon or placed against the property.

(e) A certificate shall be issued where the landlord establishes that it is an organization exempt from taxation under the Federal Internal Revenue Code, and that it seeks in good faith to recover possession of the housing accommodations for the immediate and personal use and occupancy as housing accommodations by members of its staff.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 2104.5

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