N.Y. Comp. Codes R. & Regs. tit. 9 § 2204.5

Current through Register Vol. 46, No. 18, May 1, 2024

Section 2204.5 - Occupancy by landlord or immediate family

(a) 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; provided, however, that this section shall permit recovery of only one housing accommodation and shall not apply where a member of the household lawfully occupying the housing accommodation is 62 years of age or older, has been a tenant in a housing accommodation in that building for 15 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; provided, further that a tenant required to surrender a housing accommodation by virtue of the operation of subdivision g or h of section 26-408 of the administrative code of the city of New York 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. 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.

(b) Where the housing accommodation is located in a structure or premises which contains 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 can be issued pursuant to this Part or section 5 of the State Rent Act.

(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;

(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;

(iii) the stock was acquired by the purchaser on or after July 1, 1955, and more than two years have expired since the date of filing of the notice of sale with the district rent office, as hereinafter provided in subparagraph (3)(v) of this subdivision;

(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) hereof, 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 of a tenant of a controlled housing accommodation.

(ii) Subsequent to the date the cooperative plan had been declared effective, the tenants of the 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;

(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;

(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 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) of this paragraph, the cooperative had filed with the district rent office having jurisdiction at that time, either under the State Rent Act or under these regulations, as the case may be, a copy of the cooperative plan; a copy of the first notice served upon all tenants of controlled housing accommodations; a copy of notice required by subparagraph (ii) of this paragraph; 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 sale 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 any 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 such district rent office, as the case may be, 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 section 55(3) of the State Rent and Eviction Regulations, as in effect immediately prior to July 1, 1955, 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 such district 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 (3)(ii)-(v) of this subdivision. The cooperative must file all documents required by such subparagraphs 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 these regulations, within the one-year period preceding the presentation of the cooperative plan to the tenants;

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

(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;

(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 these regulations.

(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 district rent office, as the case may be, pursuant to subparagraphs (3)(ii) and (iii) 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 tenant of the structure.

(d) Where the landlord purchased and thereby acquired title to the premises on or after September 17, 1947, no certificate shall be issued under 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 the greater; provided, however, that where the administrator finds:

(1) that equivalent accommodations are available for rent into which the tenant can move without substantial hardship or loss; or

(2) that undue hardship would result to the landlord; a certificate may be issued although less than 20 percent has been paid. The requirements of this subdivision 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 Veterans Administration.

(e) [Reserved]

(f)

(1) In the case of a housing accommodation or unit in a property submitted to the provisions of the Condominium Act, a certificate shall be issued to the unit owner where:

(i) the tenant originally obtained possession by virtue of a rental agreement with the unit owner;

(ii) more than two years have expired since the date of recording the deed of such unit to the applicant; or

(iii) the date of recording of the deed of such unit to the applicant is less than two years prior to the date of filing of the application, and on that date units in such property have been purchased by persons who were tenants of at least 80 percent of the housing accommodations in the property on the date the declaration was duly recorded, who are or were assignees or tenants in occupancy of such housing accommodations or units in such property on 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 unless the applicant shall establish compliance with the following requirements:

(i) Within 60 days after the date of the recording of the declaration, an offering statement and offering plan shall be formally filed with the Department of Law of the State of New York, which shall comply with the requirements of the rules and regulations promulgated by the Attorney General of the State of New York, and with section 352-eeee of the General Business Law.

(ii) Within five days after the date of such formal filing of the offering statement and offering plan with the Department of Law of the State of New York, each tenant in occupancy of a controlled housing accommodation in the premises on the date of recording the declaration was:

(a) furnished with a copy of the declaration, any amendment or amendments thereof, and any other instrument required to be recorded under the provisions of sections 339-s and 339-u of the Condominium Act;

(b) furnished with a copy of the offering statement and offering plan; and

(c) notified in writing, by registered or certified mail, that:

(1) he has the exclusive right to purchase the unit occupied by him for a period of 60 days after the date of mailing such advice, or until such tenant shall remve from the accommodations, whichever date shall be earlier; and

(2) no public offering for the sale of any unit in the premises will be made until at least 35 percent of the tenants in occupancy on the date of recording the declaration have agreed to purchase the unit then occupied by the individual tenant.

Housing accommodations vacant on the date of recording the declaration, 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 in the premises.

(iii) Within 30 days after at least 35 percent of the units in the premises have been sold in good faith, without fraud or duress, and with no discriminatory repurchase agreement or other discriminatory inducement, the tenants of all other controlled housing accommodations in the premises have been notified in writing, by registered or certified mail, that at least 35 percent of the tenants in occupancy have agreed to purchase the units occupied by them. Such notification shall separately state for each unit the name of the tenant who agreed to purchase, the unit identification and terms of the sale. With respect to vacant units, such notification shall separately state for each of such units the name and address of the purchaser, the unit identification and terms of the sale. Such notification shall also advise the tenants of controlled housing accommodations, who had not as yet purchased, that they still had the exclusive right, for a period of 30 days from the date of service of the notification, to purchase the unit on the previously offered terms.

(iv) Where such unit is offered for sale, after July 1, 1964, at more favorable terms than previously offered to the tenant of such controlled housing accommodations, the tenant shall be given a written notice, by registered or certified mail, of such offer and given the right for a period of 30 days after the date of the mailing of such notice to purchase such unit on the terms specified in such offer.

(v) Within 10 days from the date of mailing the notice required by subparagraph (iii) of this paragraph, the following shall be filed with the district rent office having jurisdiction:

(a) a copy of the offering statement and offering plan, together with proof of filing with the Department of Law of the State of New York;

(b) a copy of the notices required by subparagraphs (ii), (iii) and (iv) of this paragraph; and

(c) a statement, duly verified by a party executing the declaration or an officer of such party where the declaration is made by a corporation, and further duly verified by each purchaser, that the purchase had been made in good faith pursuant to the terms set forth in the offering 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 above-specified papers shall also be kept available in the building for inspection by any tenant of controlled housing accommodations or his authorized representative.

(vi) In the event that a unit shall be offered for sale to purchaser in good faith for his personal occupancy while the tenant remains in occupancy, if such tenant was in occupancy on the date when the offering statement and offering plan were filed with the Department of Law of the State of New York, at terms more favorable than those previously offered to such tenant, the latter must first be given a written notice, by registered or certified mail, of the new terms and 15 days within which to elect to purchase the unit at such new terms.

(vii) Within 10 days after any sale or resale of any unit, all tenants who had not yet purchased had been served with written notices, by registered or certified mail, setting forth the names and addresses of each of the purchasers, the designation of the housing accommodations and, in those cases where the sale of the unit was for personal occupancy of the purchaser, the terms of the sale. Copies of these notices, together with proof of service upon each such tenant, must be filed with such district 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) As used in paragraph (1) of this subdivision, the term purchased by persons who were tenants includes only:

(i) a person who purchased a vacant unit or housing accommodation; excluding, however, any unit or housing accommodation which had become vacant after the filing of an application for a certificate of eviction or an order of subdivision pursuant to these regulations within the one-year period preceding the filing of the offering statement and offering plan with the Department of Law of the State of New York;

(ii) a person who, while he was a tenant in occupancy in the building, purchased the unit occupied by him;

(iii) a person who purchased a unit or housing accommodation which was occupied by a tenant who obtained his possession from the owner of the unit;

(iv) a person who purchased a unit from an owner of such unit who was in occupancy; or

(v) a person who purchased a unit while it was occupied by a tenant who thereafter voluntarily removed therefrom.

(5) 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 these regulations; and the term tenant shall not include the persons occupying servants' rooms or apartments not subject to these regulations.

(6) Where an offering plan and offering statement which was presented to the tenants of controlled housing accommodations is not filed with the district rent office as required by clause (3)(v)(a) of this subdivision, or where at least 35 percent of the housing accommodations are not sold, within six months from the date of the formal filing of the offering statement and offering plan with the Department of Law of the State of New York, to tenants in occupancy on the date of recording the declaration, a period of 18 months from the date of such formal filing must elapse before another offering plan and offering statement may be presented to the tenants of the building. Where 35 percent of housing accommodations are not sold to such tenants within such six-month period, the tenants who have not purchased shall be notified in writing, by registered or certified mail, that the offering statement and offering plan has been withdrawn because 35 percent of the tenants in occupancy have not agreed to purchase.

(7) Copies of all notices required by this subdivision to be served on the tenants shall be filed within five days of the date of mailing with the district rent office, together with proof of service upon the tenants.

(g) No certificate of eviction shall be issued under this section where the offering plan for conversion to cooperative or condominium ownership was accepted for filing by the Attorney General on or after July 21, 1982 in accordance with section 352-eeee of the General Business Law.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 2204.5

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