Decision eases owner's ability to recover rent-stabilized apartment.

A recent decision of Judge Gische of the Civil Court has eased the way for an owner to recover a rent-stabilized apartment from a senior citizen for the owner's own use.

The Rent Stabilization Code (RSC) limits the ability of an owner to recover a rent stabilized apartment for use by the owner or his or her immediate family. In that situation, the Code precludes eviction of a stabilized tenant who is over 62 years of age unless the owner offers to provide equivalent alternative homing in the same area at the same or lower regulated rent.

In Niles v. Gordon, the court found that the owner met the requirements of the RSC and granted the owner possession of the apartment, although the owner did not provide the tenant with alternative housing.

In that case, the owner of a small brownstone sought to recover possession of an apartment from a stabilized tenant who was a senior citizen. The owner, who lived below the tenant, needed the apartment for his own use. However, as the owner had no vacant apartments in his building to offer the tenant, he asked the tenant to work with a local real estate broker to look for alternative housing. After the tenant declined to cooperate with the broker, the owner located through a broker several available apartments that the tenant was asked to look at. The owner claimed that these apartments were comparable. The tenant then refused to even look at the apartments the owner has offered.

The court found that the owner had satisfied the requirements of the RSC by offering to provide comparable housing.

Douglas L. Fromme, a partner in the Manhattan real estate law firm of Fromme Fromme Schwartz & Cornicello, LLP, who represented the owner in the proceeding, noted that the court implicitly recognized the difficulties that owners face in recovering apartments for their own use or use by a family member. In finding that the owner could satisfy the requirements of the RSC by offering to have the tenant work with a local real estate broker, (assuming comparable housing could be located), the court implicitly recognized that owners - especially small owners - often do not have comparable apartments available within their own buildings. Typically, these are owners who may need apartments for their own use or that of a family member. By allowing an owner to utilize the services of a real estate broker, owners without available alternatives in their buildings are afforded the opportunity to comply with the requirements of the RSC.

Fromme noted that the court also created a reciprocal obligation on the part of a tenant to cooperate with the owner in attempts to provide alternative housing. A tenant cannot frustrate the owner's ability to comply with the Code by simply refusing to work with a broker. Owners must often convince the Court of their good faith in seeking possession of an apartment in order to prevail. Here, the tenant's lack of "good faith" was an important factor considered by the court.

Peter A. Schwartz, another partner of Fromme Fromme Schwartz & Cornicello, said that the decision is also important in another respect. The court found that the owner was not required to offer comparable alternative housing to a senior citizen before commencement of the proceeding, but could make that offer at a later date. Schwartz noted that this permits an owner who has a need for an apartment to immediately commence an action before finding alternative housing and offering it to the tenant. It also prevents a tenant from frustrating an owner's ability to promptly recover an apartment for the owner's use by delaying the offer for alternative housing.