Introduction to Landlord and Tenant Litigation: Getting a Case Started, a Michelle Itkowitz Lawline CLE; Occupancy Relationships

July 2021

In this post, I provide an excerpt from my January 26, 2021 Lawline continuing legal education program entitled “Introduction to Landlord and Tenant Litigation: Getting a Case Started”. This except is from a very important section entitled “Occupancy Relationships”.

July 2022 Quick Update: This CLE has been available for 18 months. In that time, 428 lawyers have reviewed it – giving it a 4.9 out of 5 rating!!!

OCCUPANCY RELATIONSHIPS

To know how to get someone out of a space (or keep someone in), you first must understand what the relationship of the occupant is to the space. People new to the landlord-and-tenant area too easily assume that everyone with a superior interest in real property is a landlord and every occupant of real property is a tenant. But such is not always the case.

In this section, we are merely defining the different occupancy relationships, not explaining how to evict each occupant (that comes later in the “Predicate Notice” section and in later classes).

I. Tenant

A. Elements of a Lease

A tenant has a lease. A lease is a written or oral (fn1) contract between a landlord and a tenant that includes: (a) a fixed term, (b) a fixed rental amounts, (c) a clearly delineated premises, (d) a grant of exclusive use of the subject premises, and (e) a grant of exclusive control over the business conducted in the subject premises. (fn2)

A lease is both a contract between the landlord and tenant and a conveyance of an interest in real property from landlord to tenant (albeit a temporary conveyance of typically only a part of a building). (fn 3)

A conveyance is a transfer of an interest in real property from one person (or company) to another. (fn 4) That transfer of absolute possession and control differentiates a lease from other types of contracts. (fn 5) A lease grants exclusive possession of designated, bounded space to a tenant, usually for a specified rental rate and term, subject to certain rights reserved by the lessor. (fn 6) “Exclusive possession” means, that no one else but the tenant may go into that space (and, of course, the people the tenant allows in to the space).

B. Types of Tenancies

1. Free Market (Residential)

Any apartment that is not Rent Stabilized or subject to some other type of government regulation is generally referred to as a “free-market” apartment. With a free-market apartment:

• Tenant only has a right to stay for the lease term;
• When the lease term is over, tenant and the landlord must agree on the next rent

There is nothing that prevents a landlord of a free-market apartment from not renewing a lease or from demanding a large rent increase at the end of a term as a condition of renewing a lease. There are a few laws in New York State that slow a landlord down when she is refusing to renew a free-market tenant’s lease and/or when she is attempting to raise the rent sharply at the end of the term. (fn 7)

Moreover, RPL § 223-b makes it presumptively retaliatory for a landlord to refuse to renew a lease or to demand an unreasonable rent increase if, within a year of such renewal, tenant attempts to enforce her rights. If found, such retaliation is a defense in a summary proceeding.

Furthermore, a landlord may not refuse to renew a lease based on the tenant’s inclusion in a protected class. As of this writing, there are many protected classes for purposes of housing discrimination in New York City, including: Age; Color; Disability; Gender; Gender Identity; Immigration Status; Lawful Occupation; Lawful Source of Income (including housing subsidies); Marital or Partnership Status; Military Service; National Origin; Pregnancy; Presence of Children; Race; Religion/Creed; Sexual Orientation; Status as Victim of Domestic Violence, Sexual Violence, or Stalking.” (fn 8)

2. Rent Stabilized (Residential)

Some apartments are Rent Stabilized. Rent Stabilization is a state regulatory scheme, which applies to about one million tenancies in New York City. (fn 9) Rent Stabilization limits the rent an owner may charge for an apartment, restricts the right of an owner to evict tenants, and imposes other requirements on landlords and tenants.

Rent Stabilization is overseen by the New York State Division of Housing and Community Renewal (“DHCR”). (fn10)

Rent Stabilized tenants are entitled to leases and lease renewals. Even if landlord fails to renew a Rent Stabilized tenant’s lease, all tenant’s rights remain intact. (fn 11)

If a Rent Stabilized lease is not properly renewed, a landlord cannot sue tenant for the rent. (fn 12)

Family members of a Rent Stabilized tenant residing in a Rent Stabilized apartment often have succession rights to the tenancy. (fn 13)

Rent increases for Rent Stabilized tenants are controlled by the New York City Rent Guidelines Board, which sets maximum rates for rent increases once a year, which are effective for leases beginning on or after October 1st. (fn 14)

Under Rent Stabilization, landlord is required to follow a very specific procedure for lease renewals. Leases must be entered into and renewed for one- or two-year terms, at the tenant’s choice. (fn 15) Landlord must send the lease renewal offer between 150 and 90 days before the expiration of the current lease. (fn 16) Every lease renewal offer must have a special DHCR rider attached. At the time of this writing, the DHCR rider is 12 pages long. (fn 17) A Rent Stabilized lease renewal offer must be on the same terms and conditions as the expired lease. (fn 18)

Owners are required to register all Rent Stabilized apartments initially and then annually with the DHCR and to provide tenants with a copy of the annual registration. (fn 19)

In general, if a building was built before 1974 and contains six or more dwelling units, then the apartments therein are Rent Stabilized, unless certain exceptions apply. (fn 20) Unfortunately, there is no official list somewhere that definitively tells the world which apartments are subject to Rent Stabilization, and which are not. The DHCR has jurisdiction over matters relating to Rent Stabilization and the DHCR maintains some records. But the records the DHCR maintains contain information that is largely self-reported by landlords and that is often not controlling regarding an apartment’s Rent Stabilization status. Therefore, year after year, a landlord can report to the DHCR that an apartment is “permanently exempt”, but that does not make it so. (fn 21) Moreover, a current or former tenant may have signed a document acknowledging that an apartment is not subject to Rent Stabilization. But this, also, does not make it so. Parties may not contract out of Rent Stabilization coverage. (fn 22) It works the other way as well – landlords and tenants cannot contract into Rent Stabilization. (fn 23)

Buildings built after 1974 are frequently also subject to Rent Stabilization if they are receiving certain real estate tax benefits. Various real estate tax benefits were enacted to spur new construction or rehabilitation of residential housing. In return for the tax exemption, owners need to submit to Rent Stabilization for the duration of the tax benefit period. Such buildings’ status as Rent Stabilized is generally easier to identify. Check the building’s status online on the New York City Department of Finance or on Open Data New York for a construction benefit. Look for these types of tax benefits:

• 421-a
• 421-g
• J-51

In many cases (not all), however, the Rent Stabilization status lasts only as long as the tax benefit is in place. If an apartment is subject to Rent Stabilization as a result of a tax benefit, the lease must have a special rider informing tenant of when the benefit will end. If such rider is missing, the apartment will remain subject to Rent Stabilization until tenant moves out. (fn 24)

How do you ever get a definitive answer on an apartment’s Rent Stabilization status? With some exceptions, the last word on whether an apartment is Rent Stabilized is in the hands of the courts or the DHCR. Until a judge is satisfied that an apartment is not Rent Stabilized, and the time to appeal such decision has expired, the matter is always, in some measure, unsettled. (fn 25)

3. Cooperatives

Co-op shareholders are a type of tenant. When a person purchases “a co-op”, they are buying stock in a cooperatively owned housing corporation, and they are issued a “proprietary lease” for their specific apartment. There is an entire section of the New York City Civil Court Housing Parts dedicated to co-op eviction cases. In other words, co-ops are not that different from regular apartments when it comes to landlord and tenant legal issues.

There is an interesting additional avenue that a cooperative apartment corporation can consider when a shareholder is in arrears. At the purchase of most cooperative apartments, when a shareholder is financing the transaction with a bank loan, the bank, the cooperative apartment association, and the shareholder enter into a three-way agreement known as a “Recognition Agreement.” A Recognition Agreement usually specifies that the cooperative apartment association must notify the bank if the shareholder is in arrears, and the bank can pay the cooperative apartment association on behalf of the shareholder, and thereafter seek those sums as part of the debt secured by the security agreement. Therefore, if you are representing a cooperative apartment association against a defaulting unit owner, it is often best practice to promptly notify the lender of the arrears, as it can be an easier way to get paid than a nonpayment summary proceeding.

4. Lofts / Interim Multiple Dwelling

In the late nineteenth and early twentieth centuries, Lower Manhattan experienced an explosion of commercial manufacturing construction, which produced open floor buildings for manufacturing and storage. These are known as loft buildings. (fn 26)

After the 1940’s manufacturing was steadily leaving Manhattan and the loft buildings became vacant, artists filled the void by moving into these loft spaces. The buildings were large and open, which was conducive to art studios and the rents were cheap. Landlords were happy to find an income stream for their empty buildings. Many artists also decided that they would live in these spaces, although the lofts were not designed to be residences. The artists made their own improvements, turning the lofts into livable spaces with kitchens and bathrooms. Landlords looked the other way. The residential use of lofts, however, was obviously barred under Multiple Dwelling Law § 302.

Then in the 1970’s, loft living began to get popular and as more people were in the market for such space, the rents rose. Not surprisingly, violations began to issue for violation of the Multiple Dwelling Law and litigation ensued between landlords and tenants. The legislature got involved, and in 1982, enacted Multiple Dwelling Law Article 7-C, “Legalization of Interim Multiple Dwellings”, otherwise known as the Loft Law.

The goal of the Loft Law was NOT to create a new classification of housing stock, but rather to legally convert these de facto multiple dwellings into regular multiple dwellings with valid residential certificates of occupancy. Landlords were required to move the loft buildings toward legalization according to a statutory schedule. The New York City Loft Board was created to oversee the process. In the meantime, the tenants in loft buildings covered under Article 7-C received certain protections.

Loft Law tenants are not Rent Stabilized tenants. That is a mistake that people sometimes make. Loft Law tenants have a separate set of rights, governed by Multiple Dwelling Law Article § 286, which include:

• Continued occupancy, provided that the unit is their primary residence. MDL § 286(2).

• A rent freeze, subject to escalations specified in their lease or rental agreement to the extent to which such lease or rental agreement remains in effect or, if any, subject to rent adjustments set by the Loft Board that entitle owners to percentage increases upon the completion of each code-compliance step. As a result of this, Loft Law tenants’ rents tend to be very low.

• The right to sell the improvements that the tenant made back to the landlord or, after the landlord’s declination of its right of first refusal, to an incoming tenant. MDL § 286(6).

• The protections available to residential tenants pursuant to the real property law and the real property actions and proceedings law. MDL § 286 (11).

***

5. Co-Living

Co-living has become very popular in New York City and there are many companies offering co-living placements. There seem to be many definitions of “co-living” out there these days. The author of these materials has worked in the field in New York City for many years now, and here is my definition of co-living:

Co-living is an arrangement by which a landlord rents an apartment to a group of tenants, for at least thirty days, where the tenants occupy and share the apartment as roommates, an arrangement which the landlord consents to and facilitates as an active participant; the tenants have flexible terms, which are often short (but more than 30 days), and are allowed to vacate the apartment early without liability for the full term of the lease; if a roommate is lost, the landlord assists the remaining tenants with getting a qualified new roommate to take the lost roommate’s place and gives the remaining tenants rent-relief while doing so; the landlord frequently provides the tenants with other advantages and amenities, including but not limited to furnishings and personal property, services, and thematic programming, such as dinners or lectures on topics of common interest to the roommates; co-living places a big emphasis on the creation of a community within the apartment; the price per square foot for the apartment is often higher than it would be if the same apartment was not rented for co-living. The advantages of co-living for the tenant are affordability, flexibility, convenience, limited liability for bad roommates, and community. The advantage of co-living to a landlord is a higher price per square foot and greater control of the occupants of an apartment.

Co-living is not single room occupancy.

6. SRO’s

In the SRO (single room occupancy) scenario, a landlord goes out and rents rooms within an apartment directly to individual tenants, people who have nothing to do with one another, although they may share a bathroom and a kitchen. The landlord typically uses separate leases for each room and each tenant, with separate prices and terms. There are most likely locks on the outside of the individual bedroom doors, as if each bedroom door is the threshold to a separate living unit.

In Association for Neighborhood Rehabilitation, Inc. v. Board of Assessors of Ogdensburg, 81 AD3d 1214 [3d Dept 2011], the court found that “SRO tenants have a single sleeping room, with access to a communal kitchen, bathroom and social area.” The New York City Housing Maintenance Code (“HMC”) applies to all dwellings. NYCRR § 27-2003. Multiple Dwelling Law (“MDL”) § 4(16) states:

Single room occupancy is the occupancy by one or two persons of a single room, or of two or more rooms which are joined together, separated from all other rooms within an apartment in a multiple dwelling, so that the occupant or occupants thereof reside separately and independently of the other occupant or occupants of the same apartment.

There is a similar definition of an SRO (to that in the MDL) in the HMC, which calls an SRO unit a “Rooming Unit” at § 27-2004(a)(15) and states:

Rooming unit shall mean one or more living rooms arranged to be occupied as a unit separate from all other living rooms, and which does not have both lawful sanitary facilities and lawful cooking facilities for the exclusive use of the family residing in such unit. It may be located either within an apartment or within any class A or class B multiple dwelling.

Under HMC § 27-2004(14), an “Apartment shall mean one or more living rooms, arranged to be occupied as a unit separate from all other rooms within a dwelling, with lawful sanitary facilities and a lawful kitchen or kitchenette for the exclusive use of the family residing in such unit.” Under HMC § 27-2004(4), a “family” is:

(a) A single person occupying a dwelling unit and maintaining a common household with not more than two boarders, roomers or lodgers; or
(b) Two or more persons related by blood, adoption, legal guardianship, marriage or domestic partnership; occupying a dwelling unit and maintaining a common household with not more than two boarders, roomers or lodgers; or
(c) Not more than three unrelated persons occupying a dwelling unit and maintaining a common household; or…

MDL § 301 says that every building will be used in conformity with its certificate of occupancy (“CO”). The CO will state whether a building contains apartments or whether it may be rented for SRO use. Therefore, MDL § 301 would be violated if an apartment in a regular building was rented for SRO use.

If MDL § 301 is violated, then, according to MDL § 302, the building’s mortgage goes into default, no rent is due from the tenants, no lawsuit for rent may be brought against the tenants, and:

2. The department may cause to be vacated any dwelling or any part thereof which contains a nuisance as defined in section three hundred nine, or is occupied by more families or persons than permitted in this chapter, or is erected, altered or occupied contrary to law. Any such dwelling shall not again be occupied until it or its occupancy, as the case may be, has been made to conform to law.

7. Tenants Receiving Government Subsidies for Rent

There are tenants who receive government subsidies for their rent. One common example is tenants who get “Section 8”. The federally funded “Housing Choice” voucher program, often called a “Section 8” voucher because the program is delineated in Section 8 of the United States Housing and Community Development Act of 1974, is a common form of tenant-based rental assistance in which, unlike public housing, the subsidy attaches to the tenants, who are free to choose their homes, including those owned by private landlords, and a pre-determined portion of the rent is paid directly to the landlord under the auspices of the Section 8 program, with the tenant responsible for the balance of the rent. (fn 27) Generally, these vouchers are portable, in the sense that tenants may carry the benefit of the voucher to a new rental unit if they decide to move.

When government subsidies are received by tenants, they come along with extra steps for the landlord’s lawyer considering suing that tenant for rent or possession. In Emeagwali v. Burgos, Queens County 55544/2016, NYLJ January 11, 2017, a landlord sued to recover possession of an apartment from tenants in a summary holdover proceeding alleging the parties’ lease expired. Tenants moved for dismissal for lack of jurisdiction and failure to state a cause of action. The court noted the parties executed a lease rider providing that its terms of the Living in Communities (LINC) Program (fn 28) superseded any conflicting terms of the lease agreement. Thus, while the lease expired on its own terms, the rider was clear the parties agreed to an automatically, self-executing lease renewal unless there was a lack of program funding along with respondents’ ineligibility, or their inability to pay rent for the next year. As landlord did not properly terminate respondents’ tenancy before commencing the action, the petition was dismissed.

II. Subtenant

A sublease is a lease by a tenant to a third party (a subtenant), transferring the right to possession to some or all the leased property for a term shorter than that of the lessee, who retains a right of reversion. The important thing to keep in mind about a sublease is that it is a type of lease. As we explored above, a lease is a conveyance of an interest in real property that is, among other things, exclusive. This means that once a subtenant sublets a space from a tenant, that subtenant can exclude the tenant (also known as the sub-landlord) and the landlord (also known as the over-landlord).

A roommate is not a subtenant. The difference between a subtenant and a roommate is often one of contemporaneous occupancy. (fn 29) A tenant does not live in the apartment when the subtenant lives in the apartment. A tenant does live in the apartment together with tenant’s roommate. Put another way, a roommate does not have exclusive possession of any part of the apartment. Therefore, a roommate does not have a sublease (or any lease at all), because the main characteristic of a lease is that it bestows exclusive possession. Rather, a roommate has what is known as a license (see below) to use the real property.

III. Licensee

A license is a personal, revocable, and non-assignable privilege, conferred either orally or in writing, which permits a particular act (or series of acts) upon the property of another. (fn 30)

A. Licensee in Commercial Context

Connotes use or occupancy of the grantor’s premises, not exclusive possession of designated space. Typically, license agreements are utilized for concession stands operated within other establishments (fn 31); agreements to place and maintain vending machines in certain areas (fn 32); agreements to sell particular merchandise on the floor space of department stores (fn 33); signage on roof tops (fn 34); and coin operated laundries. (fn 35)

B. Residential Licensee

A family member of a tenant who is not on the lease. (fn 36) A roommate is also a type of licensee.

IV. Quasi-Tenancies

A. Tenant at Will

A tenancy at will is “One who enters upon lands by permission of the owner, without any term being prescribed or rent reserved…” (fn 37) The obligation to pay rent is not an absolute element of “tenancy at will”. (fn 38) Exclusive use and possession…is sufficient to create a “tenant at will”. (fn 39) The dispositive test is whether “he who is in possession has, by some act or agreement, recognized the other as his lessor or landlord and taken upon himself the character of a tenant under him, so that he is not at liberty afterwards to dispute his title[.]” (fn 40)

An example of a tenancy-at-will is when employee remains in possession after the employment relationship ended. (fn 41)

B. Tenant at Sufferance

One holding over, with no privity to the landlord. But the wrongful holding is by the laches of the landlord because it is the folly of the owner to suffer him to continue in possession after the determination of the preceding estate. No liability for rent, not really a “tenant”. Nor can the owner maintain an action of trespass against such a person. (fn 42)

Here is an example of a tenant at sufferance. A commercial tenant lets a subtenant into the leased premises, without the permission of the landlord. Tenant’s lease ends and it vacates. Landlord finds the unauthorized subtenant, from which it has never accepted rent, in the premises. There is no landlord and tenant relationship between landlord and this subtenant; they are strangers. There is no privity of contract. What is the relationship between landlord and subtenant? The subtenant is the landlord’s tenant-at-sufferance. Here, technically, the tenant has not returned possession of the premises to landlord. Therefore, landlord could sue tenant for rent beyond the expiration of the term, and in the context of that proceeding name subtenant as a respondent and extinguish subtenant’s interest that way. This might not be ideal strategically, however, if landlord has settled with tenant and tenant has surrendered. If the lease had not expired by its own terms, but tenant surrendered early, landlord might have to attorn to the subtenant. Duane Reade v. I.G. Second Generation Partners, L.P., 280 AD2d 410 [1st Dept 2001)](A sublessor’s voluntary surrender of the main lease does not impair the sublessee’s rights but transforms the sublessee into the landlord’s immediate tenant.) In such case, the landlord must proceed directly against the tenant at sufferance.

C. Squatter

A Squatter is an intruder, no one let them in. Nevertheless, they are entitled to a notice before being dispossessed. (fn 43)

D. The Difference Between a Tenant-At-Will, a Tenant-At-Sufferance, and a Squatter

The difference between a tenant at will, a tenant at sufferance, and a squatter is as follows. A tenant at will is let in by landlord with no term or rent. A tenant at sufferance comes in legally, but not via the landlord, usually via tenant as an illegal sub, and through the landlord’s laches the tenant-at-sufferance gets a kind of estate in the land. A squatter was never let in legally, but is still entitled to a notice before being evicted.

V. Contract Vendee

Generally, a tenant’s exercise of an option to purchase contained in a lease merges the landlord-tenant relationship into a vendor/vendee relationship thereby serving to terminate the landlord-tenant relationship unless the parties intend otherwise. The same is true when a seller under a contract of sale of real property allows the purchaser into the space before the closing. (fn 44) Thus, if the closing falls apart, the former-contact-vendee-occupant-left-in-the-space is not a tenant. Again, there was no meeting of the minds creating a tenancy, setting a rent and a term, etc. The best you can hope for in this situation is to be able to get the occupant out using RPAPL § 713 “Grounds where no landlord-tenant relationship exists”. (fn 45)

VI. Former Mortgagor in Possession After Foreclosure

After a property is conveyed at a foreclosure sale, the former mortgagor is not the new owner’s “tenant”. Again, as above, there was no meeting of the minds creating a tenancy, setting a rent and a term, etc. Once more, you need RPAPL § 713 “Grounds where no landlord-tenant relationship exists.” (fn 46)

FOOTNOTES

(fn 1) When can a lease be oral? If the lease is for more than a year. An oral lease for more than one year cannot be legally enforced. See General Obligations Law § 5-701 (Agreement must be in writing if it cannot be completed in less than a year).

(fn 2) Williams v City of New York, 248 NY 616 [1928]; Davis v Dinkins, 206 AD2d 365 [2d Dept 1994]; American Jewish Theatre v. Roundabout Theatre, 203 AD 155 [1st Dept 1994].

(fn 3) 219 Broadway Corp. v Alexander’s, Inc., 46 NY2d 506 [1979].

(fn 4) Black’s Law Dictionary [11th ed. 2019].

(fn 5) Feder v Caliguira, 8 NY2d 400, 404 [1960].

(fn 6) Davis v Dinkins, 206 AD2d 365 [2nd Dept 1994]; Miller v City of New York, 15 NY2d 34 [1964]; City of New York v Pennsylvania R. Co., 37 NY2d 298 [1975]; Statement, Inc. v Pilgrim’s Landing, Inc., 49 AD2d 28 [4th Dept 1975].

(fn 7) Real Property Law § 226-c (Notice of rent increase or non-renewal of residential tenancy):

“1. Whenever a landlord intends to offer to renew the tenancy of an occupant in a residential dwelling unit with a rent increase equal to or greater than five percent above the current rent, or the landlord does not intend to renew the tenancy, the landlord shall provide written notice as required in subdivision two of this section. If the landlord fails to provide timely notice, the occupant’s lawful tenancy shall continue under the existing terms of the tenancy from the date on which the landlord gave actual written notice until the notice period has expired, notwithstanding any provision of a lease or other tenancy agreement to the contrary.

2. (a) If the tenant has occupied the unit for less than one year and does not have a lease term of at least one year, the landlord shall provide at least thirty days’ notice.

(b) If the tenant has occupied the unit for more than one year but less than two years, or has a lease term of at least one year but less than two years, the landlord shall provide at least sixty days’ notice.

(c) If the tenant has occupied the unit for more than two years or has a lease term of at least two years, the landlord shall provide at least ninety days’ notice.”

(fn 8) Discrimination cases may be referred to the NYC Human Rights Commission. https://www1.nyc.gov/site/cchr/index.page

(fn 9) Selected Initial Findings of the 2014 New York City Housing and Vacancy Survey; https://www1.nyc.gov/assets/hpd/downloads/pdfs/about/2014-HVS-initial-Findings.pdf .

(fn 10) Omnibus Housing Act § 3 (L. 1983, c. 403).

(fn 11) Rent Stabilization Code § 2523.5.

(fn 12) Pald Enters. v Gonzalez, 173 Misc.2d 681, 682 [App Term 2nd Dept 1997] (“Rent [S]tabilization is a lease-based regulatory scheme. As such, a tenant’s obligation to pay the stabilized rent is dependent on the tenant’s agreement to pay it.”).

(fn 13) RSC § 2523.5(b)(1); RSC § 2520.6(o).

(fn 14) https://www1.nyc.gov/site/rentguidelinesboard/index.page.

(fn 15) RSC § 2522.5.

(fn 16) RSC § 2523.5.

(fn 17) https://hcr.ny.gov/system/files/documents/2020/11/ra-lr1-09-2019.pdf; RSC § 2522.5.

(fn 18) RSC § 2522.5

(fn 19) RSC§ 2528.3; In re Gelaj, LVT #30448 [DHCR Adm. Rev. Docket No. GN610031RO, 9/10/19] (Landlord asked the DHCR to amend annual rent registrations for one apartment for years 2013 through 2016. The DHCR ruled against landlord, who appealed and lost. Landlord asked the DHCR to change the tenant’s name from [AS] to [GS]. Landlord claimed that it made a clerical error. But tenant argued that [AS] was the tenant of record. The DHCR found that an incorrectly identified tenant for four consecutive years was simply not the sort of mistake that could be called ministerial or clerical. Any question concerning who actually was the lawful apartment tenant must be pursued in other proceedings.)

(fn 20) Unconsolidated Laws, Title 23, Chapter 5, §8625(a)(5).

(fn 21) Connors v Kushner Companies LLC, 2021 WL 3468142 [Supreme Court, Kings County, 2021].

(fn 22) See RSC § 2520.13 (Waiver of benefit void); Thornton v Baron, 5 NY3d 175 [2005] (“A lease provision purporting to exempt an apartment from rent regulation in exchange for an agreement not to use the apartment as a primary residence is against public policy and void.”); Drucker v Mauro, 30 AD3d 37 [1st Dept 2006] (“It is well settled that the parties to a lease governing a rent-stabilized apartment cannot, by agreement, incorporate terms that compromise the integrity and enforcement of the Rent Stabilization Law.”)

(fn 23) See Heller v Middagh Street Associates, 4 AD3d 332 [2d Dept 2004] (Landlord did not contractually agree to subject tenants’ apartments to Rent Stabilization Law by attaching Rent Stabilization riders to certain leases and by tendering rent renewal leases using Rent Stabilization forms.); Ruiz v Chwatt Associates, 247 AD2d 308 [1st Dept 1998] (“Rent stabilization coverage is matter of statutory right and cannot be created by waiver or estoppel.”)

(fn 24) If a 421-a Rent Stabilized tenant does not get the proper lease riders, then Rent Stabilization may remain in place even after the tax benefit expires and until the tenant vacates. Tribeca Equity Partners, L.P. v DHCR, 144 AD3d 554 [1st Dept, 2016]; RPTL 421-a(2)(f)(ii).

Rent Stabilization Code § 2520.11 (p)(2) states: “(2) for housing accommodations which first became subject to the rent stabilization requirements of section 421-a after July 3, 1984, where each lease and each renewal thereof of the tenant in occupancy at the time the period of tax exemption pursuant to section 421-a expires, contains a notice in at least 12-point type informing such tenant that the housing accommodation shall become deregulated upon the expiration of the last lease or rental agreement entered into during the tax benefit period and states the approximate date on which such tax benefit period is scheduled to expire;” [Emphasis supplied.]

(fn 25) It is way beyond the scope of this class to cover regulatory status beyond the previous few paragraphs. If you think an apartment is Rent Stabilized, contact an attorney familiar with this area of the law. http://www.itkowitz.com/rent-stabilization-coverage-analysis-for-tenants

(fn 26) NYSBA NY Real Property Law Journal, Fall 2013, Vol. 41, No. 3: Carzon – The Court of Appeals Weighs in on New York City Loft Wars, by Andrew D. Broderick; p. 53.

(fn 27) The regulations are found at 24 C.F.R. part 982.

(fn 28) https://www1.nyc.gov/site/hra/help/linc.page.

(fn 29) 1466 Holding Ltd. v Barasona, 47 Misc.3d 1224(A) [New York City Civil Court, Bronx County, 2015].

(fn 30) See Senrow Concessions, Inc. v Shelton Properties, Inc., 10 NY2d 320 [1961].

(fn 31) Lordi v Nassau Cnty., 20 AD2d 658 [2d Dept 1964].

(fn 32) People v Horowitz, 309 NY 426 [1956].

(fn 33) Layton v A.I. Namm & Sons, 275 AD 246 [1st Dept 1949] aff’d. 302 NY 720 [1951].

(fn 34) Reynolds v Van Beuren, 155 NY 120 [1898]; but see San Filippo v American Bill Posting Co., 188 NY 514 [1907].

(fn 35) Linro Equip. Corp. v Westgate Tower Assoc., 233 AD 2d 824 [3d Dept 1996].

(fn 36) Kakwani v Kakwani, 40 Misc.3d 627 [District Court, Nassau County, 2013].

(fn 37) Larned v Hudson, 60 NY 102 [1875].

(fn 38) Fisher v. Queens Park Realty Corp., 41 A.D.2d 547 (2d Dept.1973); See RPL § 228.

(fn 39) See Burns v Bryant, 31 NY 453 [1865] (“The defendant was in possession, holding for no particular time, paying no rent, making no compensation for the use of the land, … He was clearly a tenant at will”).

(fn 40) Benjamin v Benjamin, 5 NY 383 [1851].

(fn 41) See, e.g., Harris v Frink, 49 NY 24 [187]); Stiles v Donovan, 100 Misc. 2d 1048 [Civil Court of the City of New York, 1979].

(fn 42) Livingston v Tanner, 14 NY 64 [1856]; Little v Bright Holding Corp., 155 Misc.2d 686 [New York City Civil Court, Kings County, 1992]; See RPL § 228.

(fn 43) See Hecsomar Realty Corp. v Camerena, 62 Misc.3d 143(A) [Supreme Court, Appellate Term, First Judicial District, 2019]; RPAPL § 713(3).

(fn 44) Kaygreen Realty Co., LLC v IG Second Generation Partners, L.P., 78 AD 3d 1010 [1st Dept 2010]. But see Lind v Lind, 203 AD2d 696 [3d Dept 1994], holding that parties to a contract of sale do not have a landlord-tenant relationship, but there are exceptions to this rule, such as when the contract expressly avoids a merger by an express declaration in the contract that the relationship will remain that of landlord and tenant. Lind is distinguished by Osman v Saleh, 27 Misc. 3d 223 (contract of sale extinguished landlord and tenant relationship along with landlord’s right to summary proceeding to evict).

(fn 45) RPAPL § 713: A special proceeding may be maintained under this article after a ten-day notice to quit has been served upon the respondent in the manner prescribed in section 735, upon the following grounds:…9. A vendee under a contract of sale, the performance of which is to be completed within ninety days after its execution, being in possession of all or a part thereof, and having defaulted in the performance of the terms of the contract of sale, remains in possession without permission of the vendor.

(fn 46) RPAPL § 713: A special proceeding may be maintained under this article after a ten-day notice to quit has been served upon the respondent in the manner prescribed in section 735, upon the following grounds:…5. Subject to the rights and obligations set forth in section thirteen hundred five of this chapter, the property has been sold in foreclosure and either the deed delivered pursuant to such sale, or a copy of such deed, certified as provided in the civil practice law and rules, has been exhibited to him.

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