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The Owner's Use Exception to Rent Stabilization - An Uphill Battle for A Landlord Not Often Worth Fighting - an Excerpt from Michelle Itkowitz's Lawline CLE on Landlord and Tenant Litigation in New York

On October 17, 2017, Michelle Maratto Itkowitz taught Session 7 of a seven-part continuing legal education program for Lawline on Landlord and Tenant Litigation in New York. Session 7 was "Rent Stabilization – Evictions and Defense".

This session takes us through the most common possibilities for evicting a Rent Stabilized Tenant - including non-primary residence proceedings, owner's use proceedings, and "Airbnb Evictions". As always, those defending tenants in such cases will find a wealth of information here as well.

A clip from Session 7 is not available yet, but here is a clip from an earlier session in the program - Motions the Should Never Happen in Housing Court, But Often Do.

And below is an excerpt from the 38-page, 63-footnote materials, which accompanied this program:


In New York City, an individual owner of a building may recover one or more Rent Stabilized units for his own use of that of his family.  

A. What I Tell Every Landlord Client About Owner’s Use Cases

The following (in magenta) is the text of a stock email that I send to every landlord who writes to me to consult about prosecuting an Owner’s Use case:

Owner’s use cases are tough, and you need to know these things about them:

(1) Most importantly – Owner’s Use is a temporary exemption. Temporary. The next tenant you install AFTER an Owner’s Use Eviction is legally Rent Stabilized! There is no getting around that. Owner’s Use does not liberate you from regulation. 

(2) You must own the building in your own name. Not in an LLC. Get extra insurance. I am not an insurance lawyer or a transactional lawyer, you should see both before doing this. 

(3) The only way you have a prayer of the case working is if you are being 100% absolutely honest. I will not work on a case where the landlord is making it up. The tenant will get to depose you under oath and whichever family members and their spouses who you claim are moving into the tenant’s apartment. Then everyone will have to testify again at trial. Before I take one of these cases, I make sure to interview all the witnesses in person. You need to convince me before you can convince a court.  

(4) You can ONLY start these cases in the Renewal Period – between 90 and 150 days before the end of a Rent Stabilized lease. So the lease must have been properly renewed and you must wait to get in to that Golub period.

(5) If the tenant or her spouse is over 62 years old, then you must relocate the tenant upon putting yourself or your family into the apartment. You must relocate them to ANOTHER Rent Stabilized apartment at the same rent in the same neighborhood. If you cannot do that, the eviction will not happen.

(6) These cases are more expensive than the average Housing Court litigation, because there is going to be discovery - exchange of paper and depositions. In Brooklyn, it will take at least 2 years.

These items discourage most landlords from doing such a case.


B. Owner’s Use Cases Are Fact-Specific 

Some brief examples follow, and are included to demonstrate how very fact specific these cases are.  

  • Pennella v. Joy, 79 A.D.2d 606 (2nd Dept. 1980) (Landlord did not prove good faith intent when there were five other empty apartments in six-unit building.)
  • Horsford v. Bacott, 5 Misc. 3d 132(A) (App. Term 1st Dept. 2004) aff’d, 32 A.D.3d 310 (1st Dept. 2006) (“A finding of a lack of good faith is not mandated by either the claimed availability of another apartment in the building or any prior discord between the parties.”)
  • Gussow v. Hornblower, 4 Misc. 3d 131(A) (App. Term 1st Dept. 2004) (“A finding of lack of good faith is not mandated by either the claimed availability of the apartment or any prior discord between the parties. Nor is it fatal to the landlord’s otherwise persuasive owner use claim that at the time of trial her daughter-in-law was not actively pursuing her stated plan to attend business school—one of the factors specified in the underlying notice of nonrenewal in support of the landlord’s possessory claim. ‘Absolute synchronicity’ between the trial evidence and the allegations set out in a predicate notice is not required.”)
  • Raffo v. McIntosh, 3 Misc. 3d 127(A) (App. Term 1st Dept. 2004) (“Landlord’s claim that a second bedroom in tenants’ apartment is required to provide for a ‘live-in’ caretaker for the parents was negated by evidence that a back room in the parents’ own apartment—of the same or larger dimension—is equally suitable or adaptable for that purpose.”)
  • Matter of Bath, DHCR Admin. Rev. Dckt. No. JK910174RT (5/30/96) (Landlord demonstrated requisite immediate and compelling necessity and good faith when landlord’s 21-year-old son slept on pull-out bed in landlord’s dining room, was in the process of starting his own business, and only tenant’s apartment had expiring lease with rent that the son could afford.)

Unless the tenant is offered “equivalent or superior housing at the same or lower stabilized rent in a closely proximate area,” a landlord may not recover a unit for owner occupancy when the New York City Rent Stabilized tenant or the tenant’s spouse: is 62 years of age or older or suffers from an anatomical, physiological, or psychological impairment.  There is no owner-occupancy exemption for New York City Rent Stabilized tenants on the basis of long-term occupancy.

Note, however, that turning 62 or suffering from an impairment does not mean that the Landlord cannot seek to recover the apartment for owner occupancy, but rather that he must provide you with an equivalent or superior housing accommodation at the same or lower stabilized rent in a closely proximate area. For purposes of owner occupancy, an "anatomical, physiological, or psychological impairment" is defined as an impairment, other than addiction to alcohol, gambling, or controlled substances, demonstrable by standard diagnostic techniques and which is expected to be permanent and to prevent the tenant from engaging in substantial, gainful employment. 

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