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Definition of a family member

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Definition of a family member

Postby sosuajoe » Sun Oct 08, 2006 6:49 pm

I LIVE IN A MITCHA LAMA BUILDING. GOT MARRIED SAME DAY I SIGNED LEASE. WIFE WAS NEVER PUT ON LEASE BUT CAN NOT GET A ONE BEDROOM WITHOUT 2 OR MORE PEOPLE. I MOVED IN IN 1997. MOVED OUT FOR FAMILY PROBLEMS IN 2000 WAS BACK ON AND OFF FOR 2 1/2 YEARS. MOVED BACK IN IN 2003 AND GOT SEPERATED. SHE MOVED OUT. GOT DIVORCE IN 2006. BUT HPD IS SAYING I SUBLET TO MY WIFE..IS THIS POSSIBLE? THEY ARE TRYING TO EVICT ME. GOING BACK FOR A FORTH TIME ON OCT. 12TH.. I WOULD THINK YOUR WIFE IS IMMEDIATE FAMILY. IS SHE? YES OR NO. I REFUSE TO GET A LAWYER AND PAY..NO REASON I THINK. HPD IS SAYING YOU CAN'T HAVE MARRIAGE PROBLEMS. I MOVED OUT TO KEEP THE PEACE...WOULD HAVE BEEN BETTER TO STAY AND HAVE A DIR DONE BY THE POLICE..I LEFT TO AVOID ALL OF THAT...PLEASE ADVICE AND HELP ME.....sorry for caps
Last edited by sosuajoe on Sun Oct 08, 2006 7:55 pm, edited 1 time in total.
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Postby TenantNet » Sun Oct 08, 2006 6:59 pm

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Re: Definition of a family member

Postby Aubergine » Sun Oct 08, 2006 10:38 pm

sosuajoe wrote:I live in a [Mitchell L]ama building. Got married same day I signed lease. Wife was never put on lease but can not get a one bedroom without 2 or more people. I moved in in 1997. Moved out for family problems in 2000 was back on and off for 2 1/2 years. Moved back in in 2003 and got seperated. She moved out. Got divorce in 2006. But HPD is saying I sublet to my wife..is this possible? They are trying to evict me. Going back for a forth time on Oct. 12th.. I would think your wife is immediate family. Is she? Yes or no. I refuse to get a lawyer and pay..no reason I think. HPD is saying you can't have marriage problems. I moved out to keep the peace...would have been better to stay and have a dir done by the police..I left to avoid all of that...please advice and help me.
Whether a prospective co-occupant is an immediate family member or not, HPD's M-L rules require the tenant to seek permission for the occupant to join the household.
28 RCNY 3-02 (o) (2) Admission and eligibility requirements for occupants.
(i) No tenant/cooperator shall permit a person to "co-occupy" the tenant/cooperator's apartment without first obtaining the written approval of the housing company and/or HPD, except as specified in subdivision (p) of this section. Such approval shall be sought by the tenant/cooperator and the proposed occupant, submitting to the housing company through its managing agent the same financial information as is required to be submitted by any tenant/cooperator.
(ii) The housing company and/or HPD may reject any proposed occupant:
(A) For the same reasons that the housing company and/or HPD would reject the application of a person who applies to become a tenant/cooperator of a vacant apartment, provided that no rejection shall be based on the financial ability of a proposed occupant to pay the rent/carrying charge for the apartment if the tenant/cooperator has adequate financial ability to pay such rent/carrying charge; or
(B) when the acceptance of a proposed occupant would result in the apartment being occupied contrary to the occupancy standards for apartments set forth in subdivision (m) of this section; or
(C) when the acceptance of a proposed occupant would result in the apartment being occupied in violation of the income eligibility requirements of the Private Housing Finance Law or these rules, or
(D) when the acceptance of a proposed occupant would violate the income eligibility or other occupancy standards or requirements of any other federal, state or city program applicable to such apartment.
Did you seek permission to add your wife to the household? Did you submit annual income certifications that reported her and her income?

Is HPD or the housing company also claiming that you did not maintain the apartment as your primary residence? The subletting and primary residence rules are pretty stringent. See 28 RCNY 3-02 (n):
(2) No tenant/cooperator shall have the right to sublet without prior written approval of HPD and the housing company, which only shall be given in exceptional circumstances, including, but not limited to, military service. No tenant/cooperator shall have the right to assign his or her lease/occupancy agreement.
(3) No tenant/cooperator may accept any consideration or thing of value from a guest, invitee or other occupant in exchange for occupancy, whether temporary or permanent, unless such person is listed on the application, income affidavit or recertification of the tenant/cooperator and the tenant/cooperator continues to maintain the apartment as his or her primary residence.
(4) It is required that the apartment of the tenant/cooperator be at initial occupancy and continue to be his or her primary place of residence. The facts and circumstances to be considered in determining whether a tenant/cooperator occupies a dwelling unit as his or her primary residence include, but are not limited to, whether such tenant/cooperator
(i) specifies an address other than such dwelling unit as his or her place of residence or domicile in any tax return, motor vehicle registration, driver's license or other document filed with a public agency,
(ii) gives an address other than such dwelling unit as his or her voting address,
(iii) sublets or permits unauthorized persons to occupy the dwelling unit without written approval by HPD and the housing company or attempts to assign such dwelling unit, or
(iv) spent less than an aggregate of one hundred eighty-three days in the preceding calendar year in the City at such dwelling unit (unless such individual is in active service in the armed forces of the United States or took occupancy at such dwelling unit during the preceding calendar year). However, no dwelling unit may be considered the primary residence of the tenant/cooperator unless the tenant/cooperator provides proof that he or she either filed a New York City Resident Income Tax return at the claimed primary residence for the most recent preceding taxable year for which such return should have been filed . . . . The tenant/cooperator whose residency is being questioned will be obligated to provide proof that his or her apartment is his or her primary place of residence, including, but not limited to, certified New York State income tax returns, utility bills, and voter registration data.
Did the divorce judgment address you and your wife's respective rights to your apartment?

Why do you "refuse to get a lawyer"? Isn't a subsidized apartment worth a considerable amount to you? If you cannot get free legal services, think about how much more you might end up spending over a few years in a non-M-L apartment.
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Postby Anna » Sun Oct 08, 2006 11:01 pm

"Moved back in in 2003 and got seperated. She moved out. Got divorce in 2006"

So wife has not lived there since 2003?
You have lived there alone since 2003?
Does/did anyone else live there?
Who lives there now?

Even if you "sublet" to your wife. it ended in 2003: when did HPD first complain about this?

IF HPD threatening to evict you? or move you to a studio?

Yes, wife is immediate family w/potential succession rights.
Yes, you probably need representation or at least a consultation [find LSNY, Legal aid, etc in your neighborhood: http://lawhelp.org/ny/ ]

Courts have already ruled LLs cannot maintain 'illegal sublet' eviction proceedings when immediate family members remain in RS apt, but must sue leaseholder who moved out for non-primary residency instead. Probably applies to ML apts.

HPD ML Rules, the unofficial version: http://www.nyc.gov/html/hpd/downloads/p ... -rules.pdf
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Thanks for the replys

Postby sosuajoe » Sun Oct 08, 2006 11:49 pm

#1 the lease says it would be a sublet if "i moved out and any other person other then family stayed". #2. can't get a one bedroom unless 2 people on lease, but office never put her on lease.but i have a one bedroom.#3. was not an issue with building until march 2006. i moved back and wife moved out 2003. #4 every affidavite from year 1997 when we moved in had both names. In late 2000 i asked for my name to be taken off of affidavite...not lease because rent goes by income, could not afford both rent..We still filed taxes together on advice of accountant. i advised building on when i moved, reason we file together, and when i came back, in writting..Judge has in folder... My legal residence was still the same..never changed since i moved because i didn't know if i would get back with my wife...was on and off for 2 1/2 years..........Lastly, if i get legal advice can i sue the building later to get my money back?....they tried to charge me the legal fees for there lawyer but i complained and they took the fee off my rent..........thanks again for your help...wish i found this site months ago,,...........
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One last thing

Postby sosuajoe » Mon Oct 09, 2006 12:02 am

If judge rules against me can i appeal? How much time will i have? Or is the ruling final?
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Postby Aubergine » Mon Oct 09, 2006 12:39 am

28 RCNY 3-18 (c) states, "There is no administrative appeal from the determination of the hearing officer. The decision of the hearing officer is subject only to review by commencing an action pursuant to Article 78 of the Civil Practice Law and Rules."

A CPLR article 78 proceeding is a lawsuit brought in NY State Supreme Court against a (usually governmental) body or officer (in this case, the Department of Housing Preservation and Development of the City of New York) to challenge a determination or compel the performance of a nondiscretionary legal duty. The time to bring this kind of lawsuit is very short -- just 120 days from the day the decision becomes final and binding. The standard of review is deferential -- you cannot expect to be able to re-present all of your evidence and retry all of the facts. But a legal error is very much subject to challenge.

If at all possible, get a lawyer to represent you at this stage, because the battle can become much harder at the court level, especially if you failed to make the needed record below.
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Postby Anna » Mon Oct 09, 2006 8:41 am

"Judge has in folder"

What judge? exactly what stage is this HPD/LL complaint? an admin hearing? Article 78? holdover eviction proceeding in HC?

note: usually, even if it were legally possible to 'illegally sublet' to wife [not ex-wife], illegal sublets can be cured by prime-T moving back into apt as primary residence, which you say happened 3 years ago: are you very sure that the comlaint IS 'illegal sublet' OR is it 'non-primary residence'???

YOu don't need a lawyer to 'sue HPD/LL, you need a lawyer to help you stay in your apt now, e.i., to win whatever action has been taken against you. Find your neighborhood T-clinic and take all papers relating to this issue to them. Even if they can't represent you, they can help you understand what is going on anf how to improve your chances of winning, which may included advice to hire an atty.

HCDs = family isn't 'illegal sublet' in RS [probably also true in ML], affirmed by AD1:

http://tenant.net/Court/Hcourt/index.html?x=1379

235 West 71 Street LLC v. Chechak, 4 Misc.3d 114, 2004

235 West 71 Street LLC v. Chechak
, 16 A.D.3d 242, 2005
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Postby Aubergine » Sun Oct 15, 2006 11:14 am

As to whether Mitchell-Lama tenants can rely on cases holding that no illegal subletting exists where the alleged subtenant is a family member, a recent decision in an article 78 proceeding held that a tenant at Penn South, a redevelopment company subject to similar HPD regulations, could not. See Bruskin v City of New York Dept. of Hous. Preserv. & Dev., Sup Ct, NY County, July 25, 2006, Kornreich, J., Index No. 112258/2006, at 4-5, online at http://decisions.courts.state.ny.us/fcas/fcas_docs/2006aug/30011225820051sciv.pdf.
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