Rent-stabilized tenants can only be evicted under specific circumstances, such as using your apartment as a non-primary residence or illegal subletting.

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Question:

I recently moved into a rent-stabilized apartment. I’ve heard that stabilized tenants are better protected from eviction than market-rate tenants. How am I protected from eviction? Under what circumstances could my landlord kick me out?

Answer:

It's important to understand that while the Covid-19 eviction moratorium has been lifted, tenants unable to pay rent due to loss of work during the pandemic can file a hardship declaration form, which will stay any eviction proceedings until January 15th, 2022, unless their landlord challenges this. For more information, see this Ask Sam column.

Ordinarily, stabilized tenants can be evicted only under specific circumstances.

“You can be evicted, but the grounds for eviction are limited under rent-stabilization,” says Sam Himmelstein, a lawyer with the firm Himmelstein, McConnell, Gribben, Donoghue & Joseph who represents residential and commercial tenants and tenant associations.  

In New York City, rent stabilization rules can make life easier for tenants in a highly competitive and expensive market by providing certain protections. (For background on the history of stabilization and the laws governing rent increases, read our insider’s guide.)

In addition to facing only limited rent increases each year as determined by the Rent Guidelines Board, rent-stabilized tenants can also only be evicted under the following specific circumstances.

You’re using your apartment as a non-primary residence

Before the passage of rent reform legislation by the New York State in 2019, this was the most common reason stabilized tenants were evicted, Himmelstein says. The rent stabilization code requires that you live in your apartment for more than half the year for it to be considered your primary residence, so if your landlord finds that you’ve been spending less than six months of the year there, he or she can begin eviction proceedings.

“At the expiration of your lease, your landlord can send a notice that they’re not going to renew,” Himmelstein says. "They can take you to court and charge you with using the apartment as a non-primary residence."

There are exceptions to the rule, however. For example, if you’ve been spending substantial time living elsewhere because you’re taking care of a sick family member, traveling for work, or contending with your own medical issues, you’ll be protected from eviction.

The court will also consider other factors in evaluating the case, such as where you file taxes and vote, and whether you sublet the apartment. You can legally sublet your apartment for up to two years out of any four, provided that you follow the procedures set forth in section 226-b of the Real Property Law. 

“But if you’ve just taken up residence somewhere else, you can be evicted,” Himmelstein says. And note that this isn’t “curable,” in that in the event the court rules against you, you can’t simply move back in to avoid being evicted.

In determining whether an apartment is your primary residence, courts will first look at your physical presence there—far and away the most important factor—and they will, in granting the landlord pre-trial discovery, also order you to hand over certain documents, like tax returns, credit card statements, bank statements, and employment records.

“Courts look very closely at credit, debit, and bank card statements to get a picture of your electronic footprint,” Himmelstein says. “If you’re on the witness stand claiming you’re in your apartment 300 days a year, but there are credit card statement entries showing you’re making purchases in Florida 200 days a year, that is objective, empirical evidence, and becomes very important.”

That said, non-primary residence eviction cases have dwindled significantly since vacancy deregulation—which allowed landlords to raise the rent by up to 20 percent or even more if the they did improvements, and then deregulate the apartment if the rent exceeded a certain threshold when a tenant moved out—was repealed by the state government.

“There used to be more of an incentive, because the landlord could get you out on these grounds and get the apartment out of rent-stabilization and make it market-rate,” Himmelstein says. “Now the most they can do is raise the rent by $89 a month if they do $15,000 or more in improvements.”

There are some exceptions: If the apartment is a co-op or condo, for instance, it will be immediately deregulated upon the tenant moving out. The landlord may also opt to combine the unit with another one or otherwise change its layout, which would allow them to charge the subsequent tenant “first rent,” meaning that the apartment would remain stabilized but the tenant would be unable to challenge the rent being charged.

“Some landlords are still bringing these cases,” Himmelstein says. “A lot of them are warehousing apartments because they’re hoping the new laws get repealed.”  

You’ve committed a 'breach of tenancy'

This term refers to a violation of the terms of your lease or the law. Common ones, Himmelstein says, involve illegal subletting, illegal alterations, renting out your apartment on Airbnb, refusing to give access to your apartment to the landlord for necessary repairs and improvements, and adopting a pet if your lease forbids it.

However, in most of these instances, you will get a chance to make things right if your landlord begins eviction proceedings. 

“You get two bites at the apple,” Himmelstein says. “Before the case is brought to court, the landlord must serve you with a notice to cure.”

This notice gives you the chance to address whatever the lease violation is. If you fail to do so, then the landlord can file an eviction suit in housing court, but you’ll have a second opportunity to hold on to your apartment.

Previously, even if you lost your case, the court had to give you a 10-day cure period; now, under the new rent reform legislation, you have 30 days to cure the lease violation

And you don’t necessarily have to fully cure the problem, as long as you make substantial progress toward doing so. For example, if you’re illegally subletting and you can’t get the subtenant out of your apartment within 30 days, you can still avoid eviction if you can demonstrate that you are taking steps to move them out.

In order to prevail your landlord also has to prove the breach of tenancy, and depending on the type of breach, tenants have defenses. For instance, if the landlord is accusing you of making an illegal alteration, but this took place more than six years ago, the case will be dismissed based on the statute of limitations.

And if the breach is related to tenants owning a pet in defiance of a no pets policy, tenants may have a defense: The city’s pet law states that if a landlord or management discovers a resident is keeping a pet in violation of the building's rules, they must begin proceedings against that resident within 90 days. If they haven’t done so, you can keep your pet—and your apartment.

“Landlords have to file a court case within three months, not just serve a notice to cure,” Himmelstein says. “Another defense would be if the pet is an emotional support animal—if you have documentation of that from a therapist, the landlord would have to accommodate it.”

But even though you can avoid being evicted, you may get hit with some legal fees if the court finds that you were in breach.  

“With all breach of tenancy cases, depending on the language of your lease, if you lose the case you could end up paying your landlord’s legal fees,” Himmelstein says. “If you win, they pay yours.”

You’re being a nuisance

“Nuisance” may sound like a subjective term, but in this case it comes with a particular meaning.

A tenant might be deemed a nuisance if she is hoarding and her clutter is creating a safety hazard and attracting pests (also known as a Collyer case). Other nuisance cases might involve creating excessive noise, using an apartment for illegal purposes, like dealing drugs or soliciting prostitutes, assaulting or harassing building employees or neighbors, or damaging the landlord’s property or other tenants’ apartments.

“Sadly, some of these involve tenants who have mental health problems, and they end up getting a guardian appointed for them,” Himmelstein says.

Renting out your apartment on Airbnb could also be brought to court as a nuisance, rather than a breach of tenancy, particularly if there is rent gouging going on.

Nuisance cases are defined as ongoing issues rather than one-time problems, and they may be more likely to end in eviction than breach of tenancy cases are.

“Historically, tenants didn’t get the opportunity to cure with nuisance cases because the conduct is repetitive to begin with,” Himmelstein says. “But a recent trend in the courts is to examine whether the underlying conduct could really be cured. A classic example is a Collyer situation, which you can clean up and cure. On the other hand, if you’ve been selling drugs out of your apartment for two years, you’re probably not going to get a chance to cure.”

You’re not paying your rent

“Any tenant can be evicted for nonpayment of rent. However, sometimes people deliberately withhold their rent with reason, like bad conditions in the apartment, and are entitled to an abatement,” Himmelstein says. (Read more about the kind of problems that could qualify you for an abatement here.)

You might also withhold rent because there’s a dispute about what you owe—for example, you believe your apartment should be stabilized but your landlord is charging market-rate rent, which can be resolved in housing court.

However, most nonpayment cases are simply due to financial hardship, Himmelstein says. Currently, tenants can file a hardship declaration form that stays any eviction proceedings until January 15, 2022. It’s uncertain whether this will be extended.

“Most of the time, those cases are settled and landlords agree to a payment plan, or the tenant goes to social services and gets a one-shot deal and makes payment.”

You’ll only be evicted if you sign an agreement to pay a particular amount and don’t live up to it, or you go to housing court and the judge renders a decision and orders you to pay some or all of the rent and you don’t comply.

The landlord wants your apartment for herself or her family

Your landlord may be able to terminate your lease on the grounds that she wants your apartment for herself or a member of her immediate family—though it’s much less likely tenants will be evicted for this reason since 2019’s  rent reform laws were passed.

“It used to be that the landlord could recover an unlimited number of apartments and empty out a building,” Himmelstein says.

Landlords only had to demonstrate “good faith” that they really intended to occupy the apartment in the way they claimed in order to evict renters. Tenants who were 62 or older, or had disabilities, received some additional protections—the landlord was required to find these tenants superior or equivalent apartments in the neighborhood for the same or lower rent stabilized rent.  Under the new law, this protection was extended to any tenant who has been in occupancy for more than 15 years.

“At least half of these claims were false and the landlord was using owner use as a ruse  to clear out regulated tenants,” Himmelstein says.

Now, the law limits landlords to terminating the lease on only a single apartment for owner use, and they have to demonstrate an “immediate and compelling necessity” for the unit.

“It’s a very strict standard,” Himmelstein says.

In fact, he says he has not seen a single owner-use case since the rent reform laws were passed in 2019.

The landlord plans to demolish the building

A landlord could claim that he intends to demolish the building you’re living in and put up a new one, or gut-renovate and reconstruct the interior. And in these cases, all the landlord has to do is prove that he has the financial ability to do the work, and that his plans have been approved by the city.

Unlike the aforementioned examples, these proceedings are heard at the Division of Housing and Community Renewal.

“These cases take a long time and tenants are entitled to certain stipends if the landlord wins, which vary based on the amount of rent they pay and how long they’ve been living there,” Himmelstein says.

He adds that the stipends are often “completely inadequate,” but on the bright side, tenants are able to negotiate buyouts in the majority of these cases.

“They can get six figures to millions depending on what’s being built in place of the structure,” he says. If it’s a 30-story luxury condo, for instance, expect bigger buyouts.

In some instances, tenants and their attorneys think the buyout offers are insufficient and the demolition plans fall through.

“In two recent demolition cases, on the eve of the hearings the landlords dropped the cases,” Himmelstein says. “The conclusion I reached from that was that these were false filings, and the landlords didn’t really intend to demolish the buildings—they were just using it as a way to pressure stabilized tenants and get them out.”

Himmelstein says he has been seeing an uptick in these cases recently, and they are likely to increase  in neighborhoods undergoing rezoning. There are tentative plans for rezoning in SoHo, for instance, and if these go through many landlords may seek to demolish and rebuild.

“It will allow landlords to build higher than they can now, so if they have a small building with two to three rent-stabilized tenants, there’s a bigger incentive to bring a demolition case,” Himmelstein says.

What happens if you are evicted

If you lose in housing court, a judge will decide how long you have to cure the issue, comply with your lease, pay rent, or move out, depending on the type of violation.

For a breach of tenancy, you get 30 days to cure. If you don’t cure, the landlord can come back and ask the court for a possessory judgment, which gives the landlord the right to evict.

If you lose a nuisance or non-primary residence case, Himmelstein says, the judge will generally give you a few months to move out, unless the judge believes that the tenant’s continued occupancy creates a danger to other residents.

And if you lose a nonpayment case, the judge will enter a final judgment for the money you owe and awarding the landlord possession of the apartment; under the old law the judge could only give you five days to pay,  and if you didn’t pay within that time period, the landlord could apply for an eviction warrant. Under the new law the court is given discretion to give you up to a year to pay the rent and avoid eviction. As long as you pay before the court clerk issues the warrant, you will not be evicted. If you don’t pay, it usually takes three to four weeks for the court to process the paperwork and for the marshal to schedule the eviction, depending on your borough.

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Read all our Ask a Renters Rights Lawyer columns here.


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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