N.Y. Comp. Codes R. & Regs. tit. 9 § 2504.4

Current through Register Vol. 46, No. 39, September 25, 2024

Section 2504.4 - Grounds for refusal to renew lease and proceed for eviction

The landlord shall not be required to offer a renewal lease to a tenant, and may maintain an action or proceeding to recover possession in a court of competent jurisdiction only upon one or more of the following grounds:

(a) Occupancy by owner or immediate family.

(1) An owner, who is a natural person and demonstrates an immediate and compelling need to recover possession of a housing accommodation for their own personal use and occupancy of their residence or for the personal use and occupancy of their immediate family as a primary residence.

(2) The provisions of this subdivision shall not apply where a member of the household is 62 years of age or older, or 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 such person from engaging in any substantial gainful employment.

(3) The provisions of this subdivision shall only permit one of the individual owners of any building to recover possession of only one dwelling unit for personal use and occupancy.

(4) No action or proceeding to recover possession pursuant to this subdivision shall be commenced in court unless and until the owner shall have made application to the division and the division has issued an order permitting the owner to commence such action or proceeding in court and, in addition, where such order is subject to certain conditions and terms, until such conditions and terms have been complied with.

(b) Withdrawal from the rental market. The owner has established, upon application on the prescribed form, to the satisfaction of the division after a hearing and under such conditions and terms as the division may set that he seeks in good faith to withdraw occupied dwelling units from both the housing and nonhousing rental markets, without any intent to rent or sell all or any part of the land or structure.

(c) Other grounds. The owner has established upon an application on the prescribed form, after a hearing and under such conditions and terms as the division may determine to be warranted that the requested removal or eviction of the tenant is not inconsistent with the purposes of the act or this Chapter and would not be likely to result in the circumvention or evasion thereof. No action or proceeding to recover possession shall be commenced in court by the owner where he is proceeding under subdivision (b) or (c) of this section, until the owner has made application to the division and the division has issued an order permitting the owner to commence such action or proceeding in court and, in addition, where the order of the division is subject to the owner complying with specified conditions and terms, that the said conditions and terms have been complied with.

(d) Primary residence. The housing accommodation is not occupied by the tenant, not including subtenants or occupants, as his or her primary residence, as determined by a court of competent jurisdiction. 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)(7) of this Title shall be deemed to be occupying the unit as his or her primary residence. For the purposes of this Section, where a housing accommodation is rented to a not-for-profit for providing, as of and after the effective date of the chapter of the laws of two thousand nineteen that amended this Section, permanent housing to individuals who are or were homeless or at risk of homelessness, affiliated individuals authorized to use such accommodations by such not-for-profit shall be deemed to be tenants.

(e) Election not to renew. Once an application is filed under this section, with notification to all affected tenants pursuant to section 2504.3 of this Part, the owner may refuse to renew all tenants' leases until a determination of the owner's application is made by the division. For the purposes of subdivisions (b), (c) and (f) of this section, service of the application at any time shall be considered sufficient compliance with section 2504.3 of this part provided that no order may be issued less than 90 days from the date the last affected tenant's lease has expired. If such application is denied, or withdrawn, prospective renewal leases must be offered to all affected tenants within such time and at such guidelines rates as directed in the division's order of denial or withdrawal.

(f) Demolition.

(1) The owner seeks in good faith to demolish the building. As part of the application, the owner shall submit proof of its financial ability to complete such undertaking to the division, and that the plans for the undertaking have been approved by the appropriate governmental agency. Demolition shall mean the removal of the entire building including the foundation.

(2) Terms and conditions upon which orders issued pursuant to this paragraph authorizing refusal to offer renewal leases may be based:

(i) The division shall require an owner to pay all reasonable moving expenses and a stipend pursuant to clause (c) of subparagraph (ii) of this paragraph. It shall afford the tenant a reasonable period of time within which to vacate the housing accommodation. If the tenant vacates the housing accommodation on or before the date provided in the division's final order, such tenant shall be entitled to receive moving expenses and all stipend benefits pursuant to subparagraph (ii) of this paragraph. In addition, if the tenant vacates the housing accommodation prior to the required vacate date, the owner may also pay a stipend to the tenant that is larger than the stipend designated in clause (c) of subparagraph (ii) of this paragraph. However, at no time shall an owner be required to pay a stipend in excess of this amount. If the tenant does not vacate the housing accommodation on or before the required vacate date, the stipend shall be reduced by one-sixth of the total stipend for each month the tenant remains in occupancy after such vacate date except if the eviction is stayed by the commencement of judicial review of DHCR's order including any appeals.

(ii) The order granting the owner's demolition application shall provide that the owner must either:

(a) relocate the tenant to a suitable housing accommodation, as defined in paragraph (3) of this subdivision, at the same or lower legal regulated rent in a closely proximate area, or in a new residential building if constructed on the site, in which case suitable interim housing shall be provided at no additional cost to the tenant; plus in addition to reasonable moving expenses, payment of a $5,000 stipend, provided the tenant vacates on or before the vacate date required by the final order;

(b) where an owner provides relocation of the tenant to a suitable housing accommodation at a rent in excess of that for the subject housing accommodation, in addition to the tenant's reasonable moving expenses, the owner may be required to pay the tenant a stipend equal to the difference in rent, at the commencement of the occupancy by the tenant of the new housing accommodation, between the subject housing accommodation and the housing accommodation to which the tenant is relocated, multiplied by 72 months, provided the tenant vacates before the vacate date required by the final order; or

(c) In addition to the tenant's moving expenses, pay the tenant a stipend which shall be the difference between the tenant's current rent and the average rent for vacant non-regulated apartments as set forth in the New York City Housing and Vacancy Survey as of the date of the determination, or such other data that may be made available to the division. This difference is to be multiplied by seventy-two months. This stipend shall be increased each year by a guideline beginning the first year after the vacancy survey is issued and continuing until a new vacancy survey is issued.

(iii) Wherever a stipend would result in the tenant losing a subsidy or other governmental benefit which is income dependent, the tenant may elect to waive the stipend and have the owner at his or her own expense, relocate the tenant to a suitable housing accommodation at the same or lower legal regulated rent in a closely proximate area.

(iv) In the event that the tenant dies prior to the issuance by the division of a final order granting the owner's application, the owner shall not be required to pay such stipend to the estate of the deceased tenant.

(v) Where the administrator's or commissioner's order granting the owner's application is conditioned upon the owner's compliance with specified terms and conditions, if such terms and conditions have not been complied with, or if the division determines that the owner has not proceeded in good faith, the order may be modified or revoked.

(vi) Noncompliance by the owner with any term or condition of the administrator's or commissioner's order granting the owner's application may result in the division initiating its own enforcement proceeding. The division shall retain jurisdiction for this purpose until all of the terms and conditions in the administrator's or commissioner's order granting the owner's application have been met and the project described in the owner's application has been completed. Subsequent owners shall be bound by the terms and conditions of the division's order. This subparagraph shall not be deemed to eliminate any remedy or claim that a tenant of the dwelling unit may otherwise have against the owner nor eliminate any independent authority that the division may be able to exercise by law or regulation.

(vii) An owner's failure to comply within a reasonable amount of time with any term or condition of the administrator's or commissioner's order granting the owner's application or an owner's failure to complete the project described in the owner's application may be found to be a violation of the ETPA and these regulations and subject the owner to any of the penalties and remedies described therein including but not limited to revocation of the administrator's or commissioner's order granting the owner's application and the division's continued jurisdiction under the ETPA over the building or any subsequent construction. Any remedies and penalties prescribed by these regulations shall apply to and be binding against subsequent owners.

(3) Comparable housing accommodations and relocation. In the event a comparable housing accommodation is offered by the owner, a tenant may file an objection with the division challenging the suitability of an housing accommodation offered by the owner for relocation within 10 days after the owner identifies the housing accommodation and makes it available for the tenant to inspect and consider the suitability thereof. Within 30 days thereafter, the division shall inspect the housing accommodation, on notice to both parties, in order to determine whether the offered housing accommodation is suitable. Such determination will be made by the division as promptly as practicable thereafter. In the event that the division determines that the housing accommodation is not suitable, the tenant shall be offered another housing accommodation, and shall have 10 days after it is made available by the owner for the tenant's inspection to consider its suitability. In the event that the division determines that the housing accommodation is suitable, the tenant shall have 15 days thereafter within which to accept the housing accommodation. A tenant who refuses to accept relocation to any housing accommodation determined by the division to be suitable shall lose the right to relocation by the owner, and to receive payment of moving expenses or any stipend. Suitable housing accommodations shall mean housing accommodations which are similar in size and features to the respective housing accommodations now occupied by the tenants. Such housing accommodations shall be freshly painted before the tenant takes occupancy, and shall be provided with substantially the same required services and equipment the tenants received in their prior housing accommodations. The building containing such housing accommodations shall be free from violations of law recorded by the governmental agency having jurisdiction, which constitute fire hazards or conditions dangerous or detrimental to life or health, or which affect the maintenance of required services. The division will consider housing accommodations proposed for relocation which are not presently subject to rent regulation, provided the owner submits a contractual agreement that places the tenant in a substantially similar housing accommodation at no additional rent for a period of six years, unless the tenant requests a shorter lease period in writing.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 2504.4

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