Recovering Rent-Stabilized Apartment for Superintendent's Use

Q I recently got a violation from the Department of Housing Preservation and Development (HPD) for not having a superintendent living in my building or within 200 feet or one block of my building. To correct the violation, I would like to recover a rent-stabilized apartment in my building for the superintendent's use. Am I allowed to do this?

A Yes, but it won't be easy, says attorney Mitchell Zingman of Stern & Zingman, LLP. The Rent Stabilization Code allows you to apply to the Division of Housing and Community Renewal (DHCR) for permission to refuse to renew the lease of a rent-stabilized tenant and evict him if you want to withdraw the unit from the rental market because you need it in connection with a business you own [RSC §2524.5 (a)(1)(i)]. This section of the RSC covers recovering an apartment in your building for your superintendent's use.

Before you can apply to evict the tenant, you must first send the tenant a nonrenewal notice. Then you can apply to the DHCR for permission to evict the tenant. To apply, file a form called the “Owner's Application for Order Granting Approval to Refuse Renewal of Lease and/or to Proceed for Eviction” [RA-54 (10/04)]. Once you get the DHCR's approval, you can then sue to evict the tenant in housing court.

But getting the DHCR's approval can be difficult and costly. The DHCR will probably hold a hearing, during which you must prove your good-faith intent to get the apartment for the superintendent's use. If you don't, the DHCR will deny your application. For example, the DHCR denied one owner's application to recover an apartment for use by a super because the owner did not show that the apartment he wanted to recover would be sufficient as a super's residence or that the super's current apartment across the street did not sufficiently satisfy the owner's security needs [Weiss, September 1994].

In another case, the DHCR ruled against the owner because he did not prove good faith and an immediate and compelling need for the tenant's apartment. The owner sought a tenant's two-bedroom apartment because he claimed that the super would live there with his wife, child, and parents. The tenant had pointed out that other two-bedroom apartments in the building had become available. The owner claimed that the superintendent's parents couldn't walk to these upper-floor apartments. But the tenant countered by pointing out that the owner had converted several two-bedroom apartments on the lower floors to one-bedroom apartments. Ultimately, the DHCR ruled that the owner didn't show an immediate and compelling necessity for the tenant's apartment [Gesmundo, February 2004].

Another consideration, points out Zingman, is that even if the DHCR rules in your favor, it can require you to pay the tenant's relocation costs and even require you to find the tenant another apartment. Given all these obstacles, it may make more financial sense to simply wait for a vacant apartment to become available in your building, or try to find the super an apartment in a neighboring building.