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Ask Sam: Can my landlord kick me out of my apartment so his family can move in?

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Dear Sam: I'm a rent-stabilized tenant, and my building was recently sold. The new landlord has asked me to leave because they want to move their family in.  Can they do this?

It may seem surprising given how many protections rent-stabilized tenants have, but yes, if your landlord needs a place to put their family, they can indeed give you the boot. Within reason.

This is what's known as an "owner use" eviction, in which the landlord can refuse to renew your lease on the grounds that they need the apartment as a primary residence either for themselves or an immediate family member. "These cases are very common,"says Sam Himmelstein, a lawyer who represents residential and commercial tenants and tenant associations. "Some of them are genuine, and some of them are so phony you can see right through them."

So when is it legit? The landlord has to give 90 to 150 days notice before your lease is up, show in good faith that they have plans to move family into your unit, and own the building under their own name, rather than an LLC or other form of non-individual owernship. "The Supreme Court may think that 'corporations are people,' but the rent-stabilization code doesn't believe that LLCs can have families," Himmelstein notes.

As such, if you live in a large building with an elevator, an "owner use" eviction probably isn't going to hold up in court, as the building is likely owned by an LLC or large corporation.  Most at risk are rent-stabilized tenants in buildings with six to 10 apartments owned by small landlords. "If you've got a mom-and-pop landlord who has a brownstone and doesn't own any other real estate, those 'owner use' cases are very hard to beat," says Himmelstein. Owners are also within their rights to get rid of tenants altogether and turn the place into one giant private residence.

But, inevitably, plenty of larger landlords have tried to cry "owner use" as a way to kick rent-stabilized tenants out of the building and hike up the rents. And while a landlord's actual intentions for your apartment can be difficult to prove, there are telltale red flags to look out for. For instance, you're likely to have a case if there's been a history of harassment, and if you're suspicious from the outset, do a little research. "You might want to go to the landlord-tenant clerk's office to see if they've brought similar cases against other tenants in their buildings, then not moved in," says Himmelstein. "You could also do a search of their name on Property Shark to see how many other buildings they own. The larger they are as a landlord, the more suspicious a judge will be—what's so special about your particular apartment that they have to move in?"

If the case is flagrantly illegal—Himmelstein once had a client who got their landlord on tape threatening to claim "owner use" if they didn't move out—Himmelstein recommends settling early. But if not, he says, you should just stay put when the lease expires and let the landlord start a court case, called a holdover proceeding, and have your lawyer request "pre-trial discovery," a period during which the case is put on hold and they can interview both the landlord and their family members under oath at a deposition, and force them to produce documents relating to their financial history and real estate holdings. But don't go into it lightly: if the owner is actually moving in family, they won't owe you anything, and you'll be out of an apartment and your legal fees, and could even be responsible for the landlord’s legal fees. 

A few specific exceptions to keep in mind: "owner use" can't be used to kick out tenants where the tenant or their spouse is 62 or older or disabled. Instead, if an owner wants to get one of these tenants out of their apartment, they're required to provide "superior or equivalent housing accommodation at the same or lower rent-regulated rent in a closely proximate area." Similarly, in rent-controlled (versus rent-stabilized) apartments, the landlord can't give you the boot at all if you're over 62, disabled, or have been in the apartment longer than 20 years (which nearly all rent-controlled tenants have). 

You're also protected if your rental building went co-op or condo with what's known as a "non-eviction plan." In this case, an investor who buys your unit can't claim owner use to get you out. "If some guy from Texas buys your condo and says, 'I want my family in it,' they can't do that," explains Himmelstein. "The idea behind a non-eviction conversion is that no one should be evicted because they decided not to purchase."


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Sam Himmelstein, Esq., represents NYC tenants and tenant associations in disputes over evictions, rent increases, rental conversions, rent stabilization law, lease buyouts and many other issues. He is a partner at Himmelstein, McConnell, Gribben, Donoghue & Joseph in Manhattan.  To submit a question for this column, click here. To ask about a legal consultation, email Sam or call (212) 349-3000.

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