New York Codes, Rules and Regulations › Title 9 - EXECUTIVE DEPARTMENT › Subtitle S - Division of Housing and Community Renewal › Chapter VII - Emergency Housing Rent Control › Subchapter B - Rent And Eviction Regulations › Part 2104 - Evictions › Section 2104.6 - Tenant not using premises for own dwelling

Current through Register Vol. 46, No. 28, July 10, 2024
(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.