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OFFICIAL COMPILATION OF CODES, RULES AND REGULATIONS
OF THE STATE OF NEW YORK
TITLE 9. EXECUTIVE DEPARTMENT SUBTITLE S. DIVISION OF HOUSING AND COMMUNITY RENEWAL CHAPTER IV. STATE-ASSISTED HOUSING CONSTRUCTED BY PRIVATE ENTERPRISE SUBCHAPTER C. MANAGEMENT MANUAL FOR HOUSING COMPANIES PART 1727. OCCUPANCY Current through March 15, 2005 Notice: This is an unofficial copy of 9 NYCRR part 1727. The official source for these regulations is the text filed with the Secretary of State and printed in the official compilation published by Lawyers Cooperative Publishing. It is available in print in law libraries or in larger public libraries and the text is available on Westlaw and Lexis. This subchapter is printed in volume 9C of the official compilation. See http://west.thomson.com/product/14014588/product.asp for ordering information. TABLE OF CONTENTS
PART 1727. OCCUPANCY
SUBPART 1727-1. TENANT SELECTION PROCEDURE § 1727-1.1 General. § 1727-1.2 Processing of inquiries. § 1727-1.3 Processing of applications. § 1727-1.4 Additional provisions for operating projects. SUBPART 1727-2. DETERMINATION OF ELIGIBILITY FOR ADMISSION OR CONTINUED OCCUPANCY § 1727-2.1 General. § 1727-2.2 Responsibilities of housing company. § 1727-2.3 Determination of income. § 1727-2.4 Declaration of income. § 1727-2.5 Income reexamination procedure--annual and interim changes. § 1727-2.6 Tenant's refusal to cooperate in income determination. § 1727-2.7 Effective date of rent changes. § 1727-2.8 Occupancy standards. SUBPART 1727-3. LEASING; RULES AND REGULATIONS OF TENANCY LEASING PROCEDURE § 1727-3.1 General. § 1727-3.2 Initial date and duration of lease. § 1727-3.3 Rent entered on lease. § 1727-3.4 Terms of lease. § 1727-3.5 Leasing interview. § 1727-3.6 Changes in persons occupying tenant's apartment. § 1727-3.7 Resident employees. RULES AND REGULATIONS OF TENANCY § 1727-3.10 General. § 1727-3.11 Enforcement. SUBPART 1727-4. RENT DETERMINATION AND COLLECTION RENT DETERMINATION § 1727-4.1 General. § 1727-4.2 Rent schedules. § 1727-4.3 Definitions of rent schedule terms. RENT COLLECTION § 1727-4.10 Security deposits. § 1727-4.11 Tenants in occupancy. § 1727-4.12 Vacated tenants. § 1727-4.13 Write-offs of uncollectible accounts. SUBPART 1727-5. TERMINATION OF TENANCY § 1727-5.1 General. § 1727-5.2 Termination by tenant. § 1727-5.3 Termination by housing company. SUBPART 1727-6. MISCELLANEOUS PROVISIONS OF TENANCY § 1727-6.1 Special services. § 1727-6.2 Lease on commercial space. § 1727-6.3 Cooperators' advisory councils and tenants' associations. SUBPART 1727-7. SPECIAL OPEN ACCESS MINORITY-PARTICIPATION PROGRAM § 1727-7.1 General. § 1727-7.2 Definitions. § 1727-7.3 Minority participation findings. § 1727-7.4 Discrimination. § 1727-7.5 Open access program. § 1727-7.6 Application of open access program. § 1727-7.7 Priorities. § 1727-7.8 Reporting and monitoring. SUBPART 1727-8. SUCCESSION REGULATIONS § 1727-8.1 General. § 1727-8.2 Definitions. § 1727-8.3 Vacating of apartment by tenant. § 1727-8.4 Special succession provisions in the event of the death of a tenant/cooperator. § 1727-8.5 Action by housing company and by the division. § 1727-8.6 Staff housing. SUBPART 1727-1. TENANT SELECTION PROCEDURE
§ 1727-1.1 General.
The selection of tenants or cooperators for projects developed under
the Private Housing Finance Law is governed by policies and procedures indicated
in this section, except that federally assisted projects shall conform to any
HUD rules and regulations which are at variance with those herein.
(a) Except as hereinafter provided in this section, all
segments of the public will have an equal opportunity to apply for
apartments.
(b) No prospective tenant or cooperator will be rejected
because of race, creed, color, national origin, sex, disability, marital status
or age, except that an applicant must be at least 18 years of age and in the
case of senior citizen developments meet their age requirements. The housing
company and its managing agent shall comply with all Federal and State fair
housing, nondiscrimination and civil rights laws. Any complaints in writing
alleging violations of these laws shall immediately be referred to the
commissioner for appropriate action.
(c) All applications will be processed in an equitable
manner.
(d) Income of prospective tenant or cooperator will be within
permissible income limits at the time of application and at the time of
apartment availability.
(e) Admission applications and intraproject transfer
applications require the approval of the Division of Housing and Community
Renewal prior to assignment of apartment.
(f) Preference in admission to a project shall be given by a
limited profit housing company (including those companies participating in the
low rent assistance program) to persons or widows of persons who:
(1) have served in the Armed Forces of the United States
for a period of at least six months (or any shorter period which terminated due
to death or injury in such service), provided some portion of the period of
service was between January 1, 1963 and May 7, 1975, the official date of the
termination of the conflict in Vietnam; and
(2) have been thereafter discharged or released therefrom
under conditions other than dishonorable, or died in such service, not more than
five years prior to the time of application for admission to the project.
(g) Priority in admission for applicants found eligible in
accordance with the policies and procedures as provided in subdivisions (a)
through (f) of this section shall, in accordance with an affirmative fair
housing marketing plan approved by the commissioner, be as follows:
(1) Applicants qualifying as project displacees (families
displaced by a limited profit housing project):
(i) Vietnam veterans or their widows;
(ii) all other qualified persons.
(2) Applicants not qualifying as project
displacees:
(i) Vietnam veterans or their widows;
(ii) in mutual housing companies, special
categories of applicants in an established ratio of acceptances with other
qualified applicants, provided the commissioner has approved such a policy for
the housing company and the priorities are consistent with open and fair housing
policies and objectives. Such approval may be rescinded at any time if it is
determined that any such priority may tend to violate such policies and
objectives;
(iii) where projects have apartments which were
designed for or modified to accommodate the mobility-impaired, priority for such
apartments is to be given to those applicants or members of their families who
are mobility-impaired. However, such priorities should not result in any such
applicant being denied a standard apartment;
(iv) categories of applicants established by (a)
either the State or Federal government for programs in which the housing company
is a participant, or (b) the commissioner in response to emergency situations in
a ratio to be established as determined by the commissioner; and
(v) all other qualified persons.
These priorities shall apply to new tenants only
and not to intra-project transfers, except in the case of those tenants who are
mobility-impaired pursuant to subparagraph (2)(iii) of this subdivision.
(h) In order to qualify for approval by the commissioner, a
fair housing marketing plan shall include, but not be limited to: strategies for
implementing the plan' s current census tract data on the racial/ethnic
composition of the project area; identifying those racial/ethnic groups which
have traditionally not applied for admission to the projects because of
neighborhood characteristics or other factors; identifying those racial/ethnic
groups which are least likely to apply in the future unless there is special
outreach to attract them; identifying which community, religious, civil or
fraternal organizations will be utilized in conducting this outreach, with a
description of how they will be utilized, and a description of any other
advertising and promotion techniques to be undertaken in connection with sales
or rental activity. Affirmative fair housing marketing plans will be evaluated
on the basis of their appropriateness and potential effectiveness in attracting
target groups to the project for future occupancy. In addition, implementation
capability by existing rental/sales staff, and project profiles on current rent
or carrying charges, vacancy rates and the size of waiting lists, will be taken
into consideration in the evaluation process.
(i) Upon the request of the division, and in accordance
therewith, the housing company shall report on any and all aspects of its fair
housing practices. Areas of concern shall include, and not be limited to, the
provisions of this section, processing of applications, maintaining of waiting
lists, and the initiation and implementation of a sales and marketing
program.
History: Sec. amds. filed: May 21, 1964; Jan. 15, 1971; Feb. 24, 1971; July
13, 1973; May 1, 1975; Dec. 8, 1978; July 7, 1982; April 20, 1988; Aug. 18, 1989
eff. Sept. 6, 1989. Amended (f).
§ 1727-1.2 Processing of inquiries. (a) At the initiation of a sales or rental program by the
housing company or as directed by the division, in New York City, Buffalo,
Rochester, Yonkers, Syracuse or Albany, the housing company must place an
advertisement, approved by the division, in at least three widely read
newspapers, including at least one newspaper widely circulated among minority
groups, approved by the commissioner, so that all segments of the public are
aware of the availability of apartments. Comparable advertising will be utilized
for projects located in other municipalities. The advertisement must appear in
the newspapers for at least two days, and shall include the words "Equal Housing
Opportunity" and "Supervised by the New York State Division of Housing and
Community Renewal" in the copy.
(b) The advertisement should also specify that the number of
applications may be limited. Applications will be mailed only to persons making
inquiries on or before the date as specified in the advertisement. All such
applications must be mailed at one time to provide an equal opportunity for all
applicants.
(c) Applications will be mailed to persons making inquiries
after the closing date only if there are insufficient applications to meet the
project needs. Such applications, not in excess of estimated project needs, will
be issued according to date of receipt of inquiry.
History: Sec. amds. filed: July 27, 1979; July 7, 1982; Nov. 20, 1985;
April 20, 1988 eff. May 11, 1988.
§ 1727-1.3 Processing of applications. (a)
(1) Intra-project transfers shall be given priority for
available apartments over other waiting list applicants. Notwithstanding the
foregoing, one of every five available apartments of each size shall be set
aside and offered to an applicant on the outside waiting list. A separate
waiting list for intra-project transfers shall be maintained in a bound book, as
enumerated in paragraph (b)(3) of this section. Tenants whose family size or
composition changes so as to result in either under-occupancy or over-occupancy
shall, if they so request, be transferred to the proper size apartment upon its
availability. In order to encourage families who are under-occupying apartments
to voluntarily transfer to smaller apartments, housing companies may establish a
policy, subject to the commissioner's approval, of offering inducements to such
families to facilitate such transfers.
(2) Intra-project transfers between apartments with the
same bedroom count, also described as lateral transfers, are permitted. Each
housing company's lateral transfer policy must include the following
criteria:
(i) tenant is occupying current apartment in
accordance with division regulations;
(ii) tenant's family composition is in accordance
with division's minimum occupancy standards;
(iii) all costs related to a lateral transfer,
including but not limited to any rent loss, shall be borne by the tenant
requesting the transfer. At no time shall there be any cost or loss of income to
the housing company;
(iv) all transfers are subject to division prior
approval; and
(v) the resultant residual apartment shall be
offered to any applicant in accordance with established procedures.
(3) Tenants who request lateral transfers shall be placed
on the intra- project transfer list maintained as indicated in paragraph (1) of
this subdivision.
(b)
(1) Applications, on a form approved by the division, are
to be available in the housing company's rental or management office. Applicants
shall return the completed application, together with a nonrefundable processing
fee, payable to the housing company, in an amount not to exceed $25.
(2) At the time of application, the housing company shall
advise the applicant of eligibility criteria for occupancy and of the procedure
followed in processing applications pursuant to this Part, and shall furnish the
applicant with a copy of such explanatory material as the division may
prescribe. The material should contain as a minimum:
(i) application receipt and number;
(ii) statement that applicant is obligated and
responsible to advise the housing company in writing of any change of address or
family composition within 30 days of such occurrence, and the housing company is
obligated to correct its records to reflect such change; and
(iii) for developments which contain apartments
specifically designed for the mobility-impaired, a request for any information
concerning a mobility-impairment of applicant or member of applicant's family
which would allow for a priority hereunder.
(3) Upon receipt, each application is to be time and
date-stamped consecutively and issued an application number by use of a
numbering machine; the applicant is to receive a copy of the numbered
application at this time. The housing company shall maintain an application log
in a permanently bound book, in which will be recorded in separate columns, in
ink, the application number, date received, the applicant's name and address,
family composition, family income, apartment size and priority. The bound book
shall be annotated to reflect the following information: credit check status,
eligibility, address updates, apartment offerings, refusals, acceptance, basis
for inadmission, if any, and cancellation. Upon request of the division, the
housing company shall furnish to the division a copy of this book or any portion
thereof.
(c) Upon the availability of an apartment, prospective tenants
or cooperators in numbers sufficient to fill the expected vacancy shall be
notified of such availability in the order of their applications anticipating
possibilities of ineligibility or refusal. Such notification may be by telephone
but must be confirmed by mail. A copy of all notification letters shall be
retained by the housing company. This letter shall include:
(1) the current numerical position of applicant for the
size of apartment being offered;
(2) the date of anticipated availability;
(3) the family composition and income limitations
applicable to the listed apartments; and
(4) a request for submission of proof of income and
credit check fee.
(5) Applicants shall be advised that failure to respond
within 10 business days from the date of the notification letter will give rise
to a presumption that they are no longer interested in the apartment and that
they have exercised their one right of refusal or removal from the list, as the
case may be. The notice shall also state that acceptance by the housing company
is contingent upon approval by the division.
(d) Eligible applicants shall be given one right of refusal of
an apartment without prejudice to their standing on the waiting list. Any
circumstance special and unique that would cause undue hardship to an otherwise
eligible applicant by accepting a particular apartment shall be promptly
communicated in writing to the commissioner for his/her written concurrence or
approval. The concurrence or approval of the commissioner upon a finding of a
special and unique circumstance shall have the effect of preserving the
applicant's right of refusal. A second refusal shall result in their removal
from the waiting list.
(e)
(1) Upon receipt of the credit check fee the housing
company will obtain a credit report from a recognized agency for each applicant
determined as being eligible.
(2) Housing companies shall establish uniform written
criteria, policies and procedures for screening applicants on the waiting list.
Such criteria, policies and procedures shall be made available for review to all
applicants for apartments and to the division upon request. If a housing company
establishes a rent-to-income ratio as part of its credit worthiness criteria,
such criteria shall not be more restrictive than 30 percent of gross income for
rent for families and not more restrictive than 33 1/3 percent of gross income
for rent for senior citizens. Applicants for whom the projected rent would
exceed any such rent-to-income ratio shall nonetheless be given the opportunity
to demonstrate their ability to pay the rent or carrying charge. Acceptable
evidence of their ability to pay shall include, but not be limited to, a history
of paying an equivalent rent in a timely manner.
(f) Applicants whose eligibility has been confirmed after
review will be called in for the apartment in the order as herein established
and within the categories set forth in section 1727-1.1(g) of this
Subpart.
(g) Applicants found ineligible after review shall be so
notified by mail and given the basis for the determination of ineligibility.
Such applicant shall be removed from the waiting list. Any such applicant shall
be advised that he or she may appeal the determination of ineligibility by
contacting the Law Bureau of the division within seven days of receipt of this
notification. A copy of this notice and the application will be filed
alphabetically by surname in the ineligible file and retained for a period of
five years. However, nothing contained herein shall apply to applicants who are
ineligible because of excess income for the apartment offered but who would be
eligible for an apartment of the same bedroom size having higher income
limits.
(h) Upon the acceptance of an apartment and prior to occupancy,
the housing company shall submit the eligible application with the prescribed
form to the division for approval, noting the application number and any
priority, together with income verification, credit reports, copies of the
notification of availability and the response thereto, and any other supporting
documentation necessary to establish eligibility. Possession of the apartment
may not be given prior to division approval.
(i) The division may grant an exemption from the requirements
set forth in subdivision (h) of this section based on criteria set by the
division. Such exemption shall be granted at the sole discretion of the division
only if, among other things, the housing company for the previous 12-month
period had been in full compliance with the tenant selection procedures and the
waiting list for apartments in the housing company's project has routinely been
of a 12-month or shorter duration. Such exemption, moreover, may be revoked at
any time. Housing companies receiving an exemption from subdivision (h) of this
section, which requires the prior approval of applications by the division, must
continue to follow all other provisions of this Subpart including, but not
limited to, the other provisions of this section (processing of applications);
and shall maintain records and file updated copies of waiting lists and
certifications as required by the division.
(j) Applications disapproved by the division will be returned
to the housing company, which will notify the applicant by mail that applicant
does not meet eligibility requirements, the specific reason for such
determination and the right of appeal as provided in subdivision (g) of this
section. A copy of the notice and the application will be filed alphabetically
by surname in the ineligible file and retained for five years.
(k) Approved applicants will be called in for the signing of
necessary documents and paying of down payment or security deposit.
(l) Ineligible files will be maintained so as to be readily
available for review by division representatives.
History: Sec. amds. filed: Jan. 15, 1971; July 7, 1982; April 20, 1988;
Aug. 2, 1991; June 17, 1992; May 5, 1994; June 2, 1994 eff. June 22, 1994.
§ 1727-1.4 Additional provisions for operating projects. (a) After initial occupancy, applications will continue to be
accepted at all times unless the estimated waiting period is three years or more
or the number of applications shall equal the number of dwelling units for the
project, whichever basis shall result in a shorter list. During any period in
which applications are being accepted, the housing company shall implement an
ongoing affirmative fair housing marketing program to attract eligible
applicants least likely to apply to the project. In cases where the waiting
period is three years or more or reaches a number in excess of the number of
dwelling units for the project, the housing company, with the written approval
of the division, may discontinue acceptance of applications, except that such
discontinuance shall not apply to eligible Vietnam veterans, their surviving
spouses, project displaces, or to the mobility-impaired or members of their
family who are mobility-impaired in projects having apartments designed for or
modified to accommodate the mobility-impaired. The housing company must obtain
such approval from the division each year. The housing company must obtain the
approval of the division at least 30 days in advance before it reopens
applications to the public. The division will base its approval on a review of
the housing company's compliance with this Part and the housing company's
submission of an affirmative fair housing marketing plan acceptable to the
division. Such reopening of applications shall be processed in the same fashion
as the processing of inquiries and applications, pursuant to sections 1727-1.2
and 1727-1.3 of this Subpart.
(b) All advertisements for apartment sales, rentals or waiting
list applicants shall be submitted for the prior written approval of the
commissioner.
(c) The processing of accepted applications to determine
eligibility should be limited to a number sufficient to provide an adequate
number of eligible applicants in numerical order, to meet turnover
requirements.
(d) Each year the housing company shall canvass in
chronological order a sufficient number of applicants on the waiting list equal
to three times the annual turnover rate. Such canvass may be either by first
class mail or by certified mail, return receipt requested. The canvass shall
list the current range of rents or carrying charges, by apartment size, as well
as any rent or carrying charge increases approved for future implementation. It
shall further request a written statement of continued interest on the part of
the applicant, as well as any changes in family composition, address or income
which may affect eligibility, and state that failure to provide such statement
within 21 days will be deemed as noninterest on the part of the applicant. Where
a housing company has elected to conduct the canvass of the waiting list by use
of certified mail, return receipt requested, such action shall be deemed
sufficient to meet the requirement and intent of this section. However, where
first class mail is used to conduct the canvass, the housing company is required
to again canvass those applicants who failed to respond to the initial canvass
by use of certified mail, return receipt requested. Failure by an applicant to
respond to the certified mail canvass will be deemed as noninterest, whereupon
the applicant shall be removed from the waiting list. Such failure to respond
shall be noted in the bound book kept pursuant to section 1727-1.3(b)(3) of this
Subpart and evidence of the canvass efforts maintained in the housing company's
permanent files.
(e) Upon the request of an applicant, the housing company is
obligated to advise said applicant of his or her position on the waiting
list.
(f) In all cases, requests for intraproject transfers to
relieve overcrowding based on occupancy standards shall be processed first, with
the residual apartments available in accordance with priorities indicated in
section 1727- 1.1(g) of this Subpart.
History: Sec. amds. filed: Jan. 15, 1971; July 27, 1979; July 7, 1982;
April 20, 1988; May 30, 1991 eff. June 19, 1991. Amended (d).
SUBPART 1727-2. DETERMINATION OF ELIGIBILITY FOR ADMISSION OR CONTINUED OCCUPANCY § 1727-2.1 General.
Proper determination of income is extremely important as it
constitutes one of the chief qualifications necessary under law for admission or
continued occupancy of a person or family in State-aided limited dividend or
limited profit company developments. The procedures involved in determining
income are identical, whether for admission or continued occupancy; however, the
amount of income permitted differs in each case. A review for continued
occupancy may result in the imposition or withdrawal of a surcharge.
§ 1727-2.2 Responsibilities of housing company. It is the responsibility of the housing company to:
(a) determine, prior to admission, aggregate annual income of
all members of applicants' household;
(b) restrict admission to such persons or families whose
aggregate annual income is within applicable admission limits prescribed by law
or administrative regulation;
(c) review once a year aggregate annual income of persons or
families in possession;
(d) assess and collect surcharges in accordance with approved
schedules from persons and families whose income warrants such surcharges;
(e) require persons or families to remove as required by law
when incomes exceed legal limits; and
(f) accept Federal reimbursement under section 8 of the Housing
and Community Development Act of 1974 in lieu of rent payment for qualified
tenants and tenant-shareholders who were residing in the housing company
premises prior to the determination of their eligibility for government rent
subsidy and shall not reject an applicant for an apartment solely on the basis
that all or part of the rent shall be paid under section 8 of the Housing and
Community Development Act of 1974.
History: Sec. amd. filed Aug. 5, 1985; April 16, 1993 eff. May 5, 1993.
Amended (f).
§ 1727-2.3 Determination of income.
(a) In the discharge of the responsibilities listed above, the
housing company shall take such steps as it deems necessary to ascertain and
verify that gross income of applicants, tenants or cooperators is within
applicable income limits. Tenants/cooperators are required to cooperate fully in
obtaining verification of income. (See also section 1727-2.6 of this Part.) As a
minimum, verification of aggregate annual income will be based upon information
furnished as outlined below. Note that more than one method may be needed to
obtain acceptable verification.
(1) Statement of previous calendar year's income as
substantiated by W-2 form(s), Withholding Tax Statement(s). W-2 form,
Withholding Tax Statement, may be used as supplemental verification of pay
envelopes, pay stubs and employer's statement. It is not always adequate by
itself as it indicates wages received during the past year from only one
employer, whereas in some cases, wages may have been received from more than one
employer.
(2) Statement of previous calendar or taxable year's
total income as substantiated by a certified copy of New York State income tax
return obtained from the New York State Income Tax Bureau or a certified copy of
Federal Income Tax Return obtained from the Internal Revenue Service.
(3) Notarized employer's statement completely filled out
and signed by officer or responsible party of firm.
(4) Current and/or past pay stubs and pay envelopes if
they identify recipient clearly and provide a basis for determining rate of pay.
Tenants/Cooperators should be advised to retain all such stubs or
envelopes.
(5) Referee's report in case of workers'
compensation.
(6) Tenants/cooperators unemployment insurance card,
tenants/cooperators notification of benefits, D.P.U.I. tables and check
stubs.
(7) Military pay tables, allotment tables, allotment
checks, notarized statement from commanding officer of unit to which assigned,
in case of servicemen.
(8) Notarized affidavit from person or persons making
contributions, in case of contributions by relatives or other persons. Dates and
amounts of contributions should be specified.
(9) Employer's report or standard allotments for tips or
other considerations.
(10) The Social Security Board maintains records of
earnings reported to board for all employees having social security numbers.
However, requests for social security statements are to be submitted where
earnings cannot otherwise be conclusively verified, such as tenants/cooperators
who claim not to have worked, not to have filed income tax returns, or are
employed by relatives. Request for social security statement must be submitted
on Social Security Administration form OAR-7004 and must show
tenant's/cooperator's home address as return address. It is the responsibility
of tenant/cooperator to deliver report to housing company office upon receipt.
Social security records are usually not available until six months after
completion of quarter.
(b) In determining aggregate annual family income, income from
all sources, including that of minors, will be taken into account. However,
$5,000 or such larger amount, based upon increases in the current Consumer Price
Index, as authorized by the commissioner, of the earnings from the gainful
employment of a minor under the age of 21 years shall be deducted in determining
aggregate annual income. In addition, $5,000 or such larger amount, based upon
increases in the current Consumer Price Index, as authorized by the commissioner
of an adult secondary wage earner's earned income shall be deducted. Payments
made by the State or a municipality for child care of foster children in private
homes are not includable in the probable aggregate annual income of the family.
Secondary wage earner is any gainfully employed adult member of the household
other than the chief wage earner. The chief wage earner is defined as the person
who is legally or morally responsible for dependents in the household, whose
income is generally from employment or self-employment and usually exceeds
income of any other adult member of the household. It is not necessary for the
chief wage earner to be gainfully employed for another household member to
qualify as a secondary wage earner. Any question as to determination of chief
wage earner should be resolved, if possible, on the basis of affording advantage
to applicant or tenant.
(c) Income, as determined by the housing company, is subject to
review by the division upon submission of applications for admissions or
transfers. In the case of continued occupancy, income determination is subject
to review by field representatives of the Bureau of Housing Management.
(d) Payments made to tenants for child care by State, county or
other governmental agencies for care of foster children in tenant's/cooperator's
homes constitute reimbursement to the foster parents for money expended by the
foster parents on behalf of the child. Such monies are therefore not to be
included when determining probable aggregate annual income.
History: Sec. amds. filed: Dec. 13, 1966; Jan. 16, 1967; Jan. 5, 1968; Jan.
25, 1973; July 13, 1973; April 8, 1974; Aug. 26, 1976; Aug. 12, 1977; Dec. 19,
1985; April 11, 1991 eff. May 1, 1991. Amended (b).
§ 1727-2.4 Declaration of income. [Additional statutory authority: Public Housing Law § 19]
It is the responsibility of the applicant, tenant or cooperator to report his aggregate annual family income and family composition. Such declaration of income is required annually in the case of tenants or cooperators. Applicants will utilize "Application for Apartment" (Exhibit A in Appendix S-16, infra). History: Sec. amds. filed: Jan. 5, 1968; Sept. 13, 1973.
§ 1727-2.5 Income reexamination procedure--annual and interim changes. (a) Annual income reexamination procedure.
(1) Reexamination of eligibility for continued occupancy
is to be conducted as soon as possible after the end of each calendar year. Each
tenant or cooperator should receive one copy of instructions for completing
forms and two copies of "Occupant's Certification of Income." Forms should be
returned to housing company within time specified, such requirement to be
clearly stated on tenant's instruction sheet. Follow-up should be made of any
forms not returned on time.
(2) Upon receipt of form from tenant, form should be
carefully reviewed. If additional information is needed, a written request to
that effect should be forwarded to tenant or cooperator and a copy of such
request attached to "Occupant's Certification of Income" form. Date on which
information should be returned must be shown on notice and should normally be
from 7 to 10 days.
(b) Interim changes in rent. Interim changes in rent to reduce
or remove surcharges should be made, if required, only in the following
circumstances:
(1) tenant or member of family is placed upon public
assistance by department of welfare;
(2) a full-time employed member permanently leaves the
family;
(3) death or retirement of a member of the family who had
income; or
(4) long-term unemployment of a member of the family
which has been continuous for at least three months.
History: Sec. amds. filed: Jan. 5, 1968; May 1, 1975.
§ 1727-2.6 Tenant's refusal to cooperate in income determination. (a) The failure, neglect or refusal of a tenant/cooperator to
furnish information concerning his income or that of any member of his
household, or to cooperate in the verifying of such reported income, will be
assumed to indicate excess income. In such cases, rent will be raised to maximum
in surcharge schedule. However, upon submission of an affidavit of income and/or
of proper documentation, surcharges, if any, will be assessed on basis of
verified income, with the effective date of any rent change to be the first of
the month following the month in which the affidavit of income and/or proper
documentation had been filed with the housing company. In no event will credit
be given for excess surcharges already assessed as a result of failure, neglect
or refusal of tenant/cooperator to cooperate in income determination as set
forth in this section.
(b) Upon proper verification of income, per procedures outlined
in section 1727-2.3 of this Subpart, if it is determined that tenant/cooperator,
or any member of his household, willfully misrepresented any information, then
the housing company shall calculate surcharges in accordance with surcharge
schedule and assess such surcharge, as rent, each month, retroactive to the
initial month in which such surcharges should have been paid. A housing company
shall charge such tenant/cooperator a fee of $75 in payment for the expenditure
of housing company time and labor incurred to determine the true income of the
tenant/cooperator.
(c) In the event a tenant/cooperator, or any member of his
household, has indicated that he has not filed either a Federal income tax
return or a New York State income tax return for the year in question, and
subsequent verification procedures show that such a return was filed, the
procedures set forth in subdivision (b) of this section are to be followed by
the housing company.
(d) In no case shall the housing company waive the provisions
of subdivisions (a) through (c) of this section. However, where special
circumstances pertain, applications may be made, on a case-by-case basis, by the
housing company to the commissioner for a waiver of any of these
subdivisions.
History: Sec. amds. filed: May 1, 1975; Aug. 12, 1977; Jan. 4, 1978 eff.
Jan. 4, 1978. Amended (b).
§ 1727-2.7 Effective date of rent changes. The housing company shall establish an effective date for all rent
changes resulting from annual income reviews. Each tenant or cooperator whose
rent is being changed will be given notice of such change one calendar month
prior to this date. Such notice shall also be given to tenants or cooperators
whose rent is being changed to maximum surcharge rent for failing to submit
required proof.
§ 1727-2.8 Occupancy standards. (a) In addition to income limitations, compliance with
occupancy standards, i.e., the number of persons permitted to live in an
apartment of a particular size, is required. Tenants whose family size or
composition changes so as to result in either under-occupancy or over-occupancy
shall, if they so request, be transferred to the proper size apartment upon its
availability. Such intra- project transfers shall accordingly be given priority
on the waiting list.
(b) The following occupancy standards shall apply for admission to the project: (1) Generally, families shall be assigned dwelling units
of such size that only bedrooms will be used as sleeping quarters, each bedroom
to be occupied by no more than two persons. In B-type dwelling units, the living
room-bedroom is a single room.
(2) Occupancy of a bedroom by less than two persons may
be permitted where it is desirable to provide separate sleeping accommodations
for children of opposite sex and for adults of opposite sex except for husband
and wife.
(3) Where special circumstances pertain, applications may
be made by the housing company to the commissioner for a waiver of these
occupancy standards.
History: Sec. amds. filed: July 7, 1982; Aug. 29, 1988 eff. Sept. 14, 1988.
Amended (a).
SUBPART 1727-3. LEASING; RULES AND REGULATIONS OF TENANCY LEASING PROCEDURE § 1727-3.1 General.
(a) A lease for the apartment being assigned an eligible family
or person will be executed before that family or person takes possession. The
standard form of lease will be prepared in duplicate, one copy of which shall be
given to the lessee. The signatures of both husband and wife should be required,
although possession may be granted on one signature. A board member or the
manager shall sign for the housing company.
(b) Leases shall be executed at initial admission to project or
transfer of apartment.
§ 1727-3.2 Initial date and duration of lease. (a) Leases shall commence on first day of month and shall not
exceed 36 months' duration. Where tenant or cooperator takes possession after
first day of month, lease shall show term starting as first day of following
month.
(b) A full month's rent should always be collected prior to
admission, regardless of day of month tenant or cooperator takes possession.
Necessary adjustment to reflect partial month's rent should be made in following
month.
(c) At the end of a lease term, if a tenant holds over with
permission of the housing company, the lease must be renewed either by
preparation of a new lease, by an extension agreement, or by a rider.
History: Sec. amd. filed Aug. 26, 1976. Amended (c).
§ 1727-3.3 Rent entered on lease. (a) Rent entered on lease form shall be actual rent, including
surcharges if any, being assessed tenant or cooperator at time lease is signed.
Any later increase or decrease from this actual rent resulting from either a
change in tenant's or cooperator's income or a duly authorized general rent
increase, shall be handled by a rent change authorization or by a rider attached
to the lease.
(b) In the event a two-stage increase in rents or carrying
charges has been granted, one or both of which stages are not yet in effect, the
housing company shall so notify the prospective tenant or cooperator, in
writing, prior to the signing of the occupancy or lease agreement. The notice
shall detail the revision of rent or carrying charges, and the effective date or
dates thereof. The lease or occupancy agreement shall also reflect such increase
or increases and the effective date or dates thereof. A copy of the written
notice mentioned hereinabove shall be attached, as a rider, to the lease or
occupancy agreement.
History: Sec. amd. filed Aug. 26, 1968. New sec. substituted.
§ 1727-3.4 Terms of lease. The terms of the tenancy or occupancy shall be in a form of agreement
of lease prescribed by the commissioner. A special form of agreement of lease is
prescribed for federally assisted projects.
History: Sec. amds. filed: May 1, 1975; Dec. 5, 1978; April 20, 1988 eff.
May 11, 1988.
§ 1727-3.5 Leasing interview. At time of lease signing, tenant or cooperator should be informed of
his rights and obligations under the lease, and advised of the rules and
regulations of tenancy. Information should be available on activities conducted
in project, location of schools and churches, necessity for notifying post
office as to address change, and any other matters which might be helpful in his
adjustment to his new home. Finally, he should be urged to ask any questions he
might have. A prospective tenant or cooperator shall be advised in writing,
prior to the execution of a lease or occupancy agreement, of any pending rent
increase formally submitted to the Division of Housing and Community
Renewal.
History: Sec. amd. filed May 9, 1968.
§ 1727-3.6 Changes in persons occupying tenant's apartment. Housing companies shall notify all tenants, and shall provide in all
leases, that the housing company must be advised in writing within 90 calendar
days of any additions to or deletions from the tenant's family who reside in the
housing accommodation, or the persons who for a period of 30 days or more occupy
the housing accommodation, and that such changes shall be reflected in all
subsequent affidavits of income submitted by the tenant.
History: Sec. filed Aug. 21, 1967; renum. 1727-3.7, new filed Dec. 10, 1991
eff. Dec. 24, 1991.
§ 1727-3.7 Resident employees.
A housing company may assign apartments for resident employees and
their families if such assignments will provide for more efficient operation of
the project. The apartments to be assigned and the rents, if any, to be charged
shall be established by the company, subject to the prior written approval of
the division. Resident employees shall not be subject to rental surcharges or
annual income reviews. A resident employee's apartment lease or agreement which
provides for immediate vacating of the apartment upon termination of employment
for any reason whatsoever, shall be executed by all resident employees.
History: Sec. added by renum. 1727-3.6, filed Dec. 10, 1991 eff. Dec. 24,
1991.
§ 1727-3.10 General. (a) Rules and regulations of tenancy should be established by
the company to provide reasonable control over tenant or cooperator actions
which might infringe on rights of other tenants or cooperators to peaceful
possession of their apartments or tend to impair residential character of
project.
(b) Suggested rules and regulations are available from the
division, but they should be reviewed and modified to meet local conditions. A
copy of the rules and regulations adopted by the company is to be filed with the
division.
(c) Any rule or regulation so established is subject to the
written approval of the commissioner. No such rule or regulation may become
effective until it has been approved by the commissioner. When any rule or
regulation has been approved in writing by the commissioner as provided in this
subdivision, it is then to be included in any subsequent lease or occupancy
agreement with the cooperator or tenant, and is not effective as to such
cooperator or tenant until it actually appears in a lease or occupancy agreement
with said tenant or cooperator.
History: Sec. amd. filed Dec. 22, 1969. Added (c).
§ 1727-3.11 Enforcement. The effectiveness of the rules and regulations of tenancy depends on
their impartial enforcement. Prompt handling of both infractions and complaints
can do much to establish a climate of general compliance with the rules and
regulations.
SUBPART 1727-4. RENT DETERMINATION AND COLLECTION RENT DETERMINATION § 1727-4.1 General.
(a) Section 85-a of the Private Housing Finance Law concerns
rentals and selection of tenants for limited dividend housing companies. Under
its provisions, admission to a project is limited to those persons or families
whose probable aggregate annual income does not exceed seven times the annual
rent, except that in the case of persons or families with three or more
dependents, such ratio shall not exceed eight times the annual rent.
(b) Section 31 of the Private Housing Finance Law applies to
limited profit housing companies. Under its provisions, admission to a project
is limited to those persons or families whose probable aggregate annual income
does not exceed seven times the annual rent, except that in the case of families
with three or more dependents such ratio shall not exceed eight times the annual
rent.
(c) Families with two or more dependents whose probable
aggregate family income does not exceed 125 percent of the income limits in
subdivisions (a) and (b) of this section shall also be eligible for admission to
a project. Families eligible for admission under the provisions of this
subdivision shall pay a rental surcharge according to the housing company's
rental surcharge schedule.
(d) Applications shall be accepted where the probable aggregate
annual income at the time of admission does not exceed the greater of the limits
set forth in subdivisions (a) and (b) of this section or the median income as
adjusted for household size for such persons or families for the metropolitan
statistical area in which the project is located or, if a project is located
outside a metropolitan statistical area, the median income as adjusted for
household size for such persons or families for the county in which the project
is located as most recently determined by the United States Department of
Housing and Urban Development. Any person or family becoming eligible for
admission under the alternative computation set forth in this subdivision shall
pay, from the time of admission, a rental surcharge, as provided for in Subpart
1727-2 of this Part, computed on the basis of the income limitations applicable
to such persons or families in the absence of this subdivision. This subdivision
shall apply to all determinations for eligibility made after July 27, 1993. Any
such application which has been rejected based upon the applicant's excess
household income, prior to the publication of this subdivision, must be
reconsidered by the housing company.
(e) Tenants whose incomes increase over the admission limits,
but not over the legal limits for continued occupancy, may continue in
occupancy. Their rent, however, shall be increased in accordance with the rent
schedule prepared by the housing company and approved by the commissioner.
(f) Where family income has been increased by the addition of a
new family member, the housing company shall promptly recompute the family
income and, if warranted, assess the appropriate surcharge.
History: Sec. amds. filed: Aug. 26, 1976; Dec. 19, 1985; Dec. 10, 1991;
Sept. 10, 1993 as emergency measure; amd. filed Nov. 29, 1993 eff. Dec. 15,
1993. Amended (d)- (f).
§ 1727-4.2 Rent schedules. (a) Rents or carrying charges are determined by reference to
rent schedules approved by the commissioner. These rent schedules are known as
schedule A, which lists admission rents, and schedule B, which lists continued
occupancy rents for families whose incomes have increased by more than five
percent above admission limits.
(b) After ascertaining aggregate annual family income, less
permissible deductions, reference to these schedules, as applicable, will show
rent to be charged.
(c) Rent schedules are prepared by the housing company, subject
to division approval. Such schedules should provide sufficient income to meet
the costs of efficient project operation, including reasonable reserves and debt
service.
(d) The following schedule shall be used to determine surcharge
rentals:
* FOOTNOTE: See sections 1728-2.11 and 1728-2.27 of this Subtitle.
History: Sec. amd. filed May 1, 1975. § 1727-4.3 Definitions of rent schedule terms. (a) Admission rent (basic rent) is rent charged for a
particular type apartment on which maximum income limits for admission to that
type apartment are based.
(b) Surcharge rent refers to rent graduations established above
admission rent. These graduations, based on income, are shown in schedule
B.
(c) Probable aggregate annual income is annual income of chief
wage earner of family, plus all other income from members of family, except as
follows:
(1) A deduction of $5,000 or such larger amount, based
upon increases in the current Consumer Price Index, as authorized by the
commissioner, upon request of the housing company of the earned income of each
adult secondary wage earner and gainfully employed minor, under the age of 21
years, other than the chief wage earner.
(2) The personal exemptions and deductions for medical
expenses as are actually taken by the taxpayer and the amounts received from
Federal old age, survivors and disability insurance benefits.
(3) For the purpose of determining the eligibility for
admission and continued occupancy of tenant-cooperators, housing companies may,
with the approval of the commissioner, add the following amounts to the carrying
charges listed in their schedules of income limits:
(i) an amount equal to six percent of equity
investment;
(ii) replacement cost for fixtures and appliances,
based upon the value thereof as determined by the commissioner, per rental room
per year; and
(iii) apartment redecoration costs, based upon the
value thereof as determined by the commissioner per rental room per year.The
above additions to the annual carrying charges will result in a higher income
limit.
History: Sec. amds. filed: Dec. 13, 1966; Jan. 5, 1968; July 14, 1969; Feb.
24, 1971; July 13, 1973; Sept. 13, 1973; Aug. 26, 1976; Dec. 19, 1985; April 11,
1991 eff. May 1, 1991. Amended (c).
§ 1727-4.10 Security deposits. (a) A rental housing company may require tenants to pay a
security deposit in advance as a condition of occupancy to insure faithful
compliance with the terms of the lease and the rules and regulations.
(b) Security deposits shall be placed in separate
interest-bearing accounts. Such money, with interest accruing thereon, shall
continue to be the money of the tenant making such deposit and shall be held in
trust for them by the housing company and not mingled with other funds.
(c) The tenant shall be notified in writing of the name and
address of the bank in which the security deposit is being held and the amount
of the security deposit.
(d) The security deposit plus interest which has accrued since
the date of the previous annual payment but less any deductions for rent due,
loss or damage to property, or other charges, shall be returned to the tenant as
soon as possible after the apartment is vacated. (See Appendix S-8, infra,
Exhibit 34.)
(e) The housing company shall be entitled to receive, for
administration expenses, the sum of one percent per annum of the security money
so deposited. The balance of the interest credited by the banking organization
shall be annually paid to the person making the deposit of security money.
History: Sec. repealed, new filed Feb. 24, 1971; amd. filed Sept. 13, 1973.
Amended (d) and added (e).
§ 1727-4.11 Tenants in occupancy. (a) Payment of rent promptly by tenants can be made a matter of
habit. At time of prospective tenant's interview, and thereafter as necessary,
manager should stress emphatically that rent is payable on first day of
month.
(b) In the event that the rent payment is not received
promptly, a three-day notice should be served no later than 10th of month. At
expiration of three- day period, summary proceedings should be initiated. Under
supervision of counsel, precept and petition may be prepared by the manager or a
member of his staff. Counsel for company should continue to prosecute proceeding
unless full payment from tenant has been received.
(c) Tenant may be charged for service and filing fees in
connection with such proceedings, as well as any court costs authorized under
the law. Where the lease or rules and regulations do not clearly set forth this
fact, they should be revised to include such provision.
(d) It is the responsibility of the manager to see that
proceedings are diligently followed, to point of eviction if necessary, and that
counsel pursues collection of any judgment rendered by the court.
(e) Charges may be imposed for unusual administrative costs
caused by repeated negligence or willful acts of tenants or cooperators and
charged as additional rent. However, such charges may not be imposed without
prior approval of the commissioner.
History: Sec. amd. filed Aug. 9, 1984 eff. Aug. 9, 1984.
§ 1727-4.12 Vacated tenants. Where a tenant has vacated, whether voluntarily or involuntarily, it
is still the responsibility of the manager and counsel to locate such tenant and
to collect all sums due the company. In achieving this end, consideration should
be given to utilizing the services of a credit bureau to locate a vacated
tenant, ascertain his current employment and discover available assets, if any.
Judgments should be secured, and garnishees placed if feasible.
§ 1727-4.13 Write-offs of uncollectible accounts. (a) Every effort should be made by manager and counsel to
locate the tenant, discover his available assets and collect the indebtedness,
before recommending a vacated tenant's accounts receivable as a collection loss
write-off.
(b) Where collection efforts on the part of the company and
counsel have not been successful, division approval to turn over uncollected
accounts to a collection agency may be obtained on request. The agreement
between the company and the collection agency must be approved by the
division.
(c) Where all efforts as outlined above prove to be
unsuccessful and account appears to be uncollectible, write-off should be
handled as follows:
(1) Accounts receivable up to $300 may be written off at
discretion of project manager.
(2) Accounts receivable from $300 to $1,000 may be
written off by resolution of company acting upon recommendation of
counsel.
(3) Accounts receivable in excess of $1,000 may be
written off only after approval by the division. Requests for such approval must
be supported by the following:
(i) detailed description of collection efforts made
by company and counsel;
(ii) summary of credit report covering each case
giving pertinent facts upon which a decision as to uncollectibility can be
based;
(iii) recommendations of counsel; and
(iv) resolution by board of directors requesting
approval for write-off.
(4) Except for cases of fraud and misrepresentation,
counsel to company may be permitted to compromise and settle all accounts of
vacated tenants turned over to him regardless of the amount involved when such
compromise and settlement are of an urgent nature and are approved by the board
of directors. The division must be advised of such settlements in cases where
indebtedness exceeds $1,000.
History: Sec. amds. filed: Aug. 26, 1976; March 9, 1987 eff. March 9, 1987.
Amended (c).
SUBPART 1727-5. TERMINATION OF TENANCY § 1727-5.1 General. Possession of premises by tenant is held under lease in rental
developments, usually for a period of three years, and under occupancy agreement
in cooperatives. Both provide for termination of agreement, and tenancy or
occupancy thereunder, by either party at end of stipulated period, or sooner, as
may be specifically agreed upon.
§ 1727-5.2 Termination by tenant. (a) Rental developments.
(1) Tenants intending to vacate prior to expiration of
lease term should be
required to give at least one month's advance notice of such intent in writing. It is suggested that a form, "Notice of Intent to Vacate" be used; such form must be signed by tenant. If possible, management should obtain reason for vacating. (2) Liability for rent under a lease usually extends
until expiration date of lease or until apartment is relet.
(3) Possession of apartments abandoned by tenants may be
recovered by company through applicable legal proceedings. If tenant has left
any possessions or if there is any doubt as to whether apartment has actually
been abandoned, company's counsel should be contacted for advice as to
appropriate action.
(b) Cooperatives. Surrendering of possession by cooperator
involves a procedure somewhat different from that used in the case of a rental
tenant. The cooperator is a stockholder of a corporation and as such, has
certain rights, duties and responsibilities. The procedure to be employed to
terminate his tenancy is set forth below.
(1) Stockholder offers, in writing, his stock for sale to
the corporation or its designee, pursuant to the provisions of the company
bylaws and occupancy agreement.
(2) This offer, which shall remain open for 90 days,
shall constitute the corporation becoming an agent for the sale of the stock. A
nominal fee may be charged by the company, subject to division approval, for
acting in the capacity of the agent for the stockholder.
(3) Acceptance of the offer by the corporation shall be
indicated in writing before the expiration of 90 days. The stockholder shall
transfer his shares to the corporation and the corporation will then check out
the apartment to determine damage beyond normal usage; any costs involved for
restoration, or unpaid charges are deducted from the equity due the
cooperator.
(4) Corporation shall enter transfer of stock on its
books and arrangements shall be made for surrender of apartment.
(5) Stockholder thereafter surrenders possession of
apartment at agreed time.
(6) If corporation cannot arrange for stock sale within
90 days, tenant may then sell his shares, on the open market, to any person
acceptable to the corporation, subject to income provisions for admission, and
approval of the Division of Housing and Community Renewal.
(7) Stockholder shall continue to be responsible to the
housing company for all carrying charges and utility charges of said apartment
until the carrying charges and utility charges are assumed by a new stockholder.
Such charges may be deducted from the sums paid by the stockholder for shares in
the company.
(c) Resale of cooperator's apartment.
(1) All mutual limited-profit housing companies organized
and existing on or after July 6, 1971, as well as those limited-profit housing
companies organized prior to such date which have amended their bylaws to
conform to section 31-a of the Private Housing Finance Law, all mutual
limited-dividend housing companies organized and existing on or after September
27, 1975, as well as those limited-dividend housing companies organized prior to
such date which have amended their bylaws to conform to section 85-b of the
Private Housing Finance Law, and all other limited-dividend housing companies,
are required to permit a retiring shareholder to sell his shares at a price not
to exceed the consideration he actually paid for such shares plus, where not
already included in the consideration so paid by the retiring shareholder:
(i) any capital assessments and voluntary capital
contributions, as approved by the commissioner, and actually paid by the
retiring shareholder to the corporation; and
(ii) a proportionate share of the actual aggregate
amortization paid on all existing and prior mortgages on the housing project, in
the reduction of the total outstanding principal indebtedness on the project, as
determined by the board of directors of the corporation.
(2) The actual aggregate amortization is defined as the
arithmetic sum of the annual amortization payments paid by the company during
the time periods indicated in paragraph (1) of this subdivision. There is to be
no accrual of the amount of amortization for the interim period from the last
amortization payment made by the company to the date of resale.
(3) The resale price shall not involve any funds of the
housing company, which will only act as an agent between the seller and the
buyer. No payment shall be made to the retiring shareholder until the buyer's
payment has been received and collected. Any obligation of the retiring
shareholder to the company should be resolved before payment is released to
him.
(4) The eligible applicants on the project waiting list
shall be canvassed in accordance with the procedures outlined in Subpart 1727-1
of this Part, tenant selection procedure or, if such a canvass proves
unproductive, the shares may be offered to a purchaser acceptable to the housing
company and the commissioner.
(5) A housing company may never pay a retiring
shareholder an amount in excess of par value for shares it may purchase in its
own name.
(6) A housing company may assess a purchasing
shareholder-tenant a reasonable administrative charge for the preparation and
processing of his or her purchase documents, to be established by the board of
directors of the housing company, and to become effective upon the written
approval thereof by the commissioner.
History: Sec. amds. filed: Sept. 13, 1973; July 10, 1974; Aug. 26, 1976;
Aug. 27, 1984 eff. Aug. 27, 1984. Amended (c).
§ 1727-5.3 Termination by housing company. (a) General. In addition to restrictions in relevant laws,
organization documents, and other instruments, the commissioner requires that no
eviction procedure be instituted against any tenant or cooperator continuing to
pay his rent or carrying charges, unless the commissioner, upon receipt of a
verified petition, shall first certify that he has no objection to the
commencement of such proceeding. The following are grounds for the issuance of
such a certificate:
(1) Willful misrepresentation or concealment by tenant or
cooperator of any material fact which would affect eligibility for admission or
continued occupancy or rent or carrying charges to be paid.
(2) Tenant or cooperator commits or permits nuisance in
apartment and such nuisance continues after receipt of written notice.
(3) Tenant or cooperator violates a substantial
agreement, covenant or obligation of the lease, or fails to comply with the
provisions of the bylaws, subscription agreement or other governing
document.
(4) Tenant or cooperator uses or permits use of his
apartment for immoral or illegal purposes.
(5) Tenant or cooperator refuses to execute written
extension agreement or renewal of lease.
(6) Tenant or cooperator refuses reasonable access to
landlord.
(7) Tenant or cooperator's income exceeds amount
permitted by law or he refuses to divulge his true income or that of members of
his family.
(8) Landlord is mutual or cooperative housing company,
has permitted occupancy to a tenant on a rental basis, and now desires
accommodations for a shareholder or other person having made a substantial
deposit.
(9) Premises are not in continuous bona fide use as
principal residence of tenant and his family.
(b) Additional circumstances requiring the issuance of a
certificate. The commissioner requires that a housing company shall commence
eviction proceedings only after the commissioner, after receipt of a verified
petition, shall first certify that he or she has no objection to the
commencement of eviction proceedings against any individual who:
(1) in any manner not in conformity with the provisions
of the Private Housing Finance Law or the regulations duly promulgated pursuant
thereto, or with any other applicable statute or regulation, obtained occupancy
of or continues in occupancy in a housing accommodation subject to regulation
under this Part; or
(2) obtained occupancy of a housing accommodation subject
to regulation under this Part pursuant to the provisions of section 1727-3.6 of
this Part, whether or not such individual signed a lease, when such individual
fails to vacate the housing accommodation immediately when employment by the
housing company terminates.
(c) Certificate not required. The commissioner does not require
such a certificate:
(1) where the tenant occupies an apartment in a building
operated by a company for the purposes of staff housing and said tenant is not a
staff member, employee or student of a college, university or hospital; or
(2) where the tenant or cooperator harbors a dog, cat or
other animal in his apartment.
(d) Optional certificate. The housing company may either:
(1) seek a certificate; or
(2) proceed directly in a court of competent jurisdiction
to recover possession of the premises where the tenant or cooperator uses or
occupies the premises or any part thereof, or same are used or occupied, for the
unlawful trade, manufacture, distribution, storage, and/or sale of marijuana or
of any controlled substance, as more specifically defined and set forth in
Public Health Law, section 3306 and in the Penal Law, section 220.00.
(e) Procedure to be employed.
(1) The housing company shall serve a copy of the
petition upon the tenant affected, prior to, or simultaneously with, the filing
of such petition with the Commissioner of Housing and Community Renewal. Service
shall be made in accordance with the terms of section 735 of the Real Property
Actions and Proceedings Law or by registered mail.
(2) The petition served upon the tenant will include a
notice that tenant has 10 days from date of completion of service on him within
which to serve the Commissioner of Housing and Community Renewal and the housing
company with a verified statement setting forth any objections he may have to
the granting of the requested approval.
(f) Order of evictions. The priority of petitions brought
pursuant to paragraph (a)(7) of this section is:
(1) those who have refused or failed to file income
statements;
(2) over-income tenants, beginning with those having the
greatest excess incomes, and continuing in descending order.
(g) Responsibilities of manager and counsel.
(1) Actions by the company to recover possession will be
processed by the company's counsel based on information furnished by the
manager. The manager is responsible for the accuracy of that information and,
where applicable, that all other reasonable efforts have been made to correct
the situation.
(2) The housing company shall direct counsel to take all
actions necessary to secure the eviction of all individuals subject to eviction
pursuant to the provisions of subdivision (b) of this section.
(3) The company's counsel is responsible for insuring
that necessary notices and other papers are properly and timely prepared and
served. Preparation and service of such papers, as directed by company's
counsel, should be accomplished by project personnel where practicable,
especially in the case of nonpayment or other rent action.
(4) Actions for nonpayment of rents should follow the
schedule outlined in Subpart 1727-4 of this Part, Rent Determination and
Collection. The schedule of legal action, including three days' notice, should
be such as to have the case in court without undue delay. In holdover
proceedings, i.e., actions other than for nonpayment of rent, necessary legal
action should be scheduled as soon as possible after the commissioner's
authorization has been obtained. Where authorization to institute holdover
proceedings is required, it is the responsibility of the manager to submit to
the company, as promptly as possible, full information, including his efforts to
resolve the matter by other means. If matter is urgent, authorization can be
obtained by contacting chairman and members, with such authorization being
officially ratified at a later date.
(5) It is essential that all statutory requirements and
procedures established by the commissioner be strictly followed in the case of
termination proceedings so that action is not impaired. The company's counsel
should insure that company personnel concerned are aware of applicable statutory
requirements. No payments of rent should be accepted once proceedings have been
instituted, unless such acceptance is approved by the company's counsel.
History: Sec. amd. filed Aug. 21, 1967; repealed, new filed Aug. 20, 1969;
amds. filed: Aug. 29, 1988; Feb. 6, 1989 as emergency measure; April 26, 1989;
Sept. 14, 1990 as emergency measure; Dec. 17, 1990 as emergency measure; Feb.
14, 1991; Nov. 30, 1993 eff. Dec. 15, 1993. Amended (d)(2).
SUBPART 1727-6. MISCELLANEOUS PROVISIONS OF TENANCY § 1727-6.1 Special services.
A housing company may furnish tenants with special services not
provided for in the lease, such as bus, laundry, television antenna or other
services, but only upon such terms as the commissioner may approve in writing.
The approval of the commissioner will be given only upon the express condition
that such services, and all facilities used in connection therewith, will be
made available to all tenants on equal terms and shall be self-sustaining.
§ 1727-6.2 Lease on commercial space. Where stores or other commercial facilities are contained in a
project, they shall be leased only on such terms and on such forms as are
approved by the commissioner.
§ 1727-6.3 Cooperators' advisory councils and tenants' associations. (a) Housing companies that presently have a cooperators'
advisory council, cooperators' advisory councils and tenants' associations,
hereinafter called "council," or tenants' association, hereinafter called
"association," shall notify all tenants in writing of the existence of this
organization and that the housing company intends to recognize this organization
as the duly constituted council or association of the project in accordance with
section 32-a of the Private Housing Finance Law. The notice will state that such
recognition means that the housing company management will meet regularly with
the organization representatives to discuss matters relating to the project. It
will further state that, in the event more than 10 percent of the tenant
families object to this association or council, the housing company shall
conduct an election to determine representative status.
(b) Housing companies that do not have councils or associations
shall, upon receipt of requests by at least 10 percent of the tenant-families
requesting formation of a council or association, arrange for an election.
(c) Under subdivisions (a) and (b) of this section, upon
certification by the housing company of a duly constituted council or
association, the commissioner shall recognize said organization and shall direct
the housing company to meet with the council or association on a regular
basis.
(d) In the event that a housing company fails to hold an
election, then the commissioner, upon written request by at least 10 percent of
the tenant-families, shall direct the housing company to hold said
election.
(e) Upon the election of a board of directors of a mutual
company, the project cooperators' advisory council shall no longer be
recognized.
History: Sec. filed Aug. 26, 1976.
SUBPART 1727-7. SPECIAL OPEN ACCESS MINORITY-PARTICIPATION PROGRAM History: Subpart (§§ 1727-7.1--1727-7.8) filed March 24, 1986 eff. April
14, 1986.
§ 1727-7.1 General. (a) Pursuant to the terms of a stipulation of settlement and
consent decree approved in Federal District Court, Eastern District of New York
in April 1985, relating to the tenant selection practices at Starrett City, the
Division of Housing and Community Renewal is undertaking a program to achieve
increased minority access at certain DHCR projects.
(b) A program designed to open access to covered DHCR projects,
as provided by the court's decree, is intended, in part, to decrease the
minority demand for apartments at Starrett City by opening up other apartments,
if it is determined that such apartments had been previously impermissibly
unavailable to the plaintiff class and other minorities. Any newly created
housing opportunities at covered DHCR projects for minorities are intended to
reduce the waiting times for the plaintiff class and other minority applicants
at Starrett City. In view of the State support of and assistance to the covered
DHCR projects and of the purposes of said support and assistance, and of
relevant State and Federal laws with which the DHCR and the commissioner are
authorized or required to obtain compliance, and of the unique circumstances of
the present housing market in New York City, the commissioner and the DHCR will
undertake an enforcement program to eliminate unlawful discrimination, to
promote housing opportunities for minorities, and to promote integration in
covered DHCR projects.
(c) This Subpart supplements and is in addition to the other
regulations pertaining to tenant occupancies.
History: Sec. filed March 24, 1986 eff. April 14, 1986.
§ 1727-7.2 Definitions. As used in this Subpart:
(a) Covered project shall mean any limited profit or limited
dividend housing company project, other than a housing project built or approved
exclusively for aged persons or for employees of a hospital, located in the City
of New York in which minorities constitute less than 20 percent of the occupancy
by units.
(b) Division shall mean the New York State Division of Housing
and Community Renewal.
(c) Open access goal shall mean the goal of unit occupancy,
within 15 years of the date of inception of the program, of 20 percent minority
tenants, by units; the open access goal may not be used as a ceiling for
minority occupation.
(d) Plaintiff class shall mean those persons who:
(1) are on the waiting list for apartments at Starrett
City as of May 2, 1984; and
(2) are included in the class certified in Arthur et al.
v. Starrett City Associates, et al. 79 Civ. 3096 (ERN), by the United States
District Court for the Eastern District of New York on June 22, 1983.
(e) Minority shall mean pursuant to the provisions of Executive
Order No. 21 dated August 4, 1983, the following:
(1) black persons having origins in any of the black
African racial groups not of Hispanic origin;
(2) Hispanic persons of Mexican, Puerto Rican, Dominican,
Cuban, Central or South American of either Indian or Hispanic origin, regardless
of race;
(3) Asian and Pacific Islander persons having origins in
any of the Far East, Southeast Asia, the Indian subcontinent or the Pacific
Islands; and
(4) American Indian or Alaskan Native persons having
origins in any of the original peoples of North America and maintaining
identifiable tribal affiliations through membership and participation or
community identification.
History: Sec. filed March 24, 1986 eff. April 14, 1986.
§ 1727-7.3 Minority participation findings. (a) Each covered project shall be notified by the division to
submit a voluntary open access program, acceptable to the commissioner, to
achieve the open access goal.
(b) If a covered project does not submit an acceptable
voluntary open access program within 60 days of the division's notice, the
division shall conduct an investigation including a review of the covered
project's tenant selection practices, waiting lists, marketing and such other
factors as the commissioner may deem relevant, to determine whether the covered
project has impermissibly excluded or discriminated against minorities. The
covered project may submit evidence and argument in support of its position
during the investigation.
(c) Within 180 days of the inception of such division
investigation, the commissioner shall make preliminary findings whether there is
probable cause to believe that the covered project has impermissibly excluded or
discriminated against minorities.
(d) Where such probable cause has been found, the covered
project shall have an opportunity to:
(1) submit a voluntary open access program, acceptable to
the commissioner, to achieve the open access goal; or
(2) rebut the finding of such probable cause by a
preponderance of the evidence.
(e) Upon the completion of the investigatory process, including
the receipt of rebuttal evidence, or upon a failure of a covered project to
offer rebuttal evidence or to submit an acceptable voluntary open access
program, and within 180 days of the date of the commissioner's preliminary
findings, the commissioner shall determine whether minorities have been
impermissibly excluded or discriminated against by the covered project and will
enter an order setting forth such finding and order the implementation of an
open access program to remedy impermissible discrimination.
History: Sec. filed March 24, 1986 eff. April 14, 1986.
§ 1727-7.4 Discrimination. The commissioner shall find that a covered project has impermissibly
excluded or discriminated against minorities if there is a finding that there
has been:
(a) housing discrimination against minorities, other than the
specific acts set forth in subdivision (d) of this section; or
(b) failure to comply with the provisions of Subpart 1727-1 of
this Part (equal opportunity and fair housing in projects of regulated housing
companies) in effect on July 7, 1982 and thereafter, as amended;
(c) failure to comply with other division regulations relating
to tenant selection practices, waiting lists, and marketing, as set forth in
this Part and in effect at the time of such failure to comply, with the
foreseeable consequence of limiting or excluding minorities from the covered
project; or
(d) an act or failure to act which had the foreseeable
consequence of limiting or excluding a minority or minorities from the project.
The commissioner shall find such an act or failure to act if:
(1) the covered project, upon creation or reopening of a
waiting list, failed to advertise the availability of applications or apartments
in newspapers of general circulation in the area; or
(2) the covered project, upon creation or reopening of a
waiting list, failed to advertise the availability of applications or apartments
in a widely read minority-oriented newspaper; or
(3) the covered project failed to include a statement of
nondiscrimination or equal housing opportunity in advertisements of the
availability of applications or apartments; or
(4) the covered project conducted a systematic outreach
program but failed to conduct outreach to minority groups or in minority
communities; or
(5) the covered project had a preference for admission to
the project for family members or relatives or friends of tenants or
cooperators; or
(6) such other circumstances existed or exist that in the
commissioner's sole discretion, a finding of a discriminatory act or a failure
to act is warranted.
The commissioner shall not invoke this subdivision unless and until
completion of the division's preliminary investigation pursuant to section
1727-7.3 of this Subpart and a finding under subdivision (a), (b) or (c) of this
section. If the commissioner finds an act or failure to act under this
subdivision, it will be deemed an impermissible exclusion of or a discrimination
against minorities unless there is a substantial basis for a contrary finding.
In such case, specific reasons that support such contrary finding shall be set
forth. However, if a judicial determination is made voiding this subdivision,
affirmative steps to achieve an open access goal shall then be based solely on
acts or omissions set forth in subdivisions (a)-(c) of this section.
History: Sec. filed March 24, 1986; April 20, 1988 eff. May 11, 1988.
Amended (b).
§ 1727-7.5 Open access program. Among the open access programs that may be developed and approved by
the commissioner are:
(a) creation of a minority waiting list accompanied by a
specific affirmative marketing program designed to assure that minorities will
learn of the creation of such list. The minority waiting list would operate for
a specific period, in tandem with a general chronological waiting list, or until
a specified number of vacancies have been filled. Eligible applicants for all
apartments shall be selected, to rent or purchase apartments, as they become
available from the tandem lists, pursuant to a formula approved by the
commissioner for the particular covered project to reach the open access goal.
Until the open access goal has been achieved, the commissioner may limit or
suspend priorities for internal transfers of existing tenants in a manner
consistent with the objectives of this regulation, subject to health and tenant
welfare considerations; and
(b) voiding of existing waiting lists and replacement thereof
with new lists created in accordance with section 1727-1.2 of this Part
(commissioner's affirmative fair marketing regulations) and such additional
requirements as the commissioner may deem appropriate in the circumstances,
including use of random selection methods for responding to requests for
applications, for selection of applications for placement on a new waiting list,
and/or for ranking applicants on such list.
In consideration or selection of appropriate voluntary or ordered
open access programs, remedies and goals, the commissioner may consider the
number. proportion and distribution of minorities on a covered project's waiting
list, the existing number, proportion and distribution of minority tenants, the
character and location of the neighborhood and project turnover rates.
History: Sec. filed March 24, 1986 eff. April 14, 1986.
§ 1727-7.6 Application of open access program. (a) The commissioner may not require that vacant units at a
covered project under an approved open access program be filled with minorities
at a rate greater than two minority tenant units for every five vacant
units.
(b) The commissioner may not designate or set aside specific
apartments in covered projects for occupancy by persons of a particular race or
minority group or require that any apartments be kept vacant or off the market
pending application by a member of a particular race or minority.
History: Sec. filed March 24, 1986 eff. April 14, 1986.
§ 1727-7.7 Priorities. The commissioner shall require that voluntary or ordered open access
programs establish a priority, among minorities who apply for such opportunities
created thereunder, for members of plaintiff class who apply for and are
otherwise eligible for such newly created housing opportunities consistent with
the following ranking; subject, however, to any existing priorities or
preferences required by applicable State or Federal statutes or
regulations:
(a) First priority. Minorities on the waiting list in existence
at a particular covered project at the time the open access program is
implemented at that project.
(b) Second priority. Members of plaintiff class on the Starrett
City waiting list who have not become tenants at Starrett City or of another
covered project at the time the open access program is implemented, and
minorities who are on waiting lists in existence at all other covered projects,
as of April 3, 1985, and who remain on such waiting lists at the time the open
access program is implemented.
(c) Third priority. All other minorities.
History: Sec. filed March 24, 1986 eff. April 14, 1986.
§ 1727-7.8 Reporting and monitoring. (a) Each covered project shall retain accurate records of its
compliance with the open access goal containing, among other things, (1) a copy
of the approved program, (2) a detailed, contemporary waiting list conforming to
these regulations and to Subpart 1727-1 of this Part, (3) copies and dates of
all advertisements required hereunder, and (4) details of its outreach
program.
(b) The commissioner from time to time, in his sole discretion,
by written notice or otherwise may require a covered project to submit all
records and data required in this Part for review.
(c) Failure of a covered project to so submit such data, upon
10 days' written notice to the managing agent thereof, or such other designated
person in authority, shall be deemed a violation of section 32 or 84 of the
Private Housing Finance Law.
History: Sec. filed March 24, 1986 eff. April 14, 1986.
SUBPART 1727-8. SUCCESSION REGULATIONS History: Subpart (§§ 1727-8.1--1727-8.6) filed Dec. 10, 1991 eff. Dec. 24, 1991. § 1727-8.1 General. The rights of family members of tenants or cooperators who have
requested to remain as the lawful tenant in apartments in projects developed
under the Private Housing Finance Law are governed by policies and procedures
indicated in this section, except in those instances where federal rules and
regulations preempt these regulations.
History: Sec. filed Dec. 10, 1991 eff. Dec. 24, 1991.
§ 1727-8.2 Definitions. (a) As used in this Subpart the following definitions
apply:
(1) Tenant/cooperator. Any person or persons named on a
lease as lessee or lessees or who is or are a party or parties to a rental
agreement and obligated to pay rent or carrying charges for the use or occupancy
of a housing accommodation.
(2) Family member.
(i) A husband, wife, son, daughter, stepson,
stepdaughter, father, mother, stepfather, stepmother, brother, sister, nephew,
niece, uncle, aunt, grandfather, grandmother, grandson, granddaughter,
father-in-law, mother-in-law, son-in-law or daughter-in-law of the tenant.
(ii) Any other person residing with the tenant in
the housing accommodation as a primary or principal residence, who can prove
emotional and financial commitment and interdependence between such person and
the tenant. Although no single factor shall be solely determinative, evidence
which is to be considered in determining whether such emotional and financial
commitment and interdependence existed shall be the income affidavit filed by
the tenant for the housing accommodation and other evidence which may include,
without limitation, the following factors:
(a) longevity of the relationship;
(b) sharing of or relying upon each other for
payment of household or family expenses, and/or other common necessities of
life;
(c) intermingling of finances as evidenced by,
among other things, joint ownership of bank accounts, personal and real
property, credit cards, loan obligations, sharing a household budget for
purposes of receiving government benefits, etc.;
(d) engaging in family-type activities by jointly
attending family functions, holidays and celebrations, social and recreational
activities, etc.;
(e) formalizing of legal obligations, intentions,
and responsibilities to each other by such means as executing wills naming each
other as executor and/or beneficiary, granting each other a power of attorney
and/or conferring upon each other authority to make health care decisions each
for the other, entering into a personal relationship contract, making a domestic
partnership declaration, or serving as a representative payee for purposes of
public benefits, etc.;
(f) holding themselves out as family members to
other family members, friends, members of the community or religious
institutions, or society in general, through their works or actions;
(g) regularly performing family functions, such as
caring for each other or each other's extended family members, and/or relying
upon each other for daily family services; and
(h) engaging in any other pattern of behavior,
agreement, or other action which evidences the intention of creating a
long-term, emotionally committed relationship. In no event would evidence of a
sexual relationship between such persons be required or considered.
(3) Senior citizen. A person who is 62 years of age or
older.
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