§ 3-02 Rental or Sale of Space and Solicitation of Deposits.
(a) Priority of applicants for dwelling units – initial rent up period. All inquiries and applications for the purchase of shares or rental of dwelling units received within 10 days of the public announcement about the development by HPD shall be treated on a par with each other regardless of the actual date of receipt of inquiry, application or deposit. In order to receive consideration, all inquiries shall be in writing and directed to the housing company, which shall note the date of receipt thereon. All correspondence addressed to the housing company or sponsor relating to the proposed development shall be acknowledged within ten (10) days of its receipt.
(b) Offer to rent or sell during initial rent up period. No housing company shall advertise or offer to rent any space or sell any cooperative shares without prior written approval of HPD. Advertisements shall include language as follows: "Equal Housing Opportunity" and "supervised by N.Y.C. Department of Housing Preservation and Development." Advertisements shall also include language as follows: "Only one request for an application per person shall be permitted."
(c) Rental schedule and charges. No housing company shall rent or lease any dwelling units or other rental space or equipment until the schedule of rentals or of carrying charges and equity payments for the entire housing development company has been approved in writing by HPD. No change in the schedule or in the accommodations in the development shall be made without prior written approval of HPD.
(d) Prerequisites to rental or sales. The rental or leasing of space shall not be commenced by a housing company until:
(1) In the case of a cooperative housing company (hereinafter referred to as a "mutual housing company"), the Information Bulletin shall be accepted for filing by the Department of Law of the State of New York pursuant to § 352-e of the General Business Law.
(2) The sponsoring agreement, restricted bank account, and required insurance coverage have been provided by the housing company and approved, in writing, by HPD.
(3) The sales or rental agreement, blanket position bond, and resolution of the Board of Directors of the housing company authorizing the agreement have been approved by HPD.
(4) All application forms, subscription agreements, occupancy agreements, receipts, and all other forms proposed to be used by the housing company must be approved in writing by HPD before they are used.
(e) Solicitation of deposits. Deposits from applicants for dwelling units shall not be solicited or accepted by the housing company until after the development has been approved by the State Division of Housing and Community Renewal, the housing company has been duly organized, and the development has been approved by the Board of Estimate or its successor.
(f) Procedure for deposits. Deposits shall not exceed $100 per dwelling unit, nor shall deposits be solicited or accepted until HPD has approved in writing:
(1) The form of receipt, and
(2) The opening of a trust account in which all deposits are required to be promptly deposited in the name of the housing company (or such other person or organization designated by HPD), and
(3) The proposed selling agent. Deposits shall be accepted by the housing company by check or money order only, payable to the housing company. In the case of a mutual housing company, all funds so received shall be deposited in said account and shall bear the title "Capital Trust Account" after the name of the housing company. Funds on deposit in said trust account shall be restricted and subject to withdrawal only upon the filing of a written authorization signed by a designee of HPD.
(4) All other criteria set forth in this section governing rental of dwelling units or sale of shares.
(g) Form of receipt. The receipt for the deposit shall clearly state that no monies in addition to the deposit may be collected as a further or final payment until HPD has (1) authorized the receipt by the housing company of further payments, and (2) approved the provisions of the subscription and occupancy agreement in the case of a mutual housing company development or of the lease agreement in the case of a rental development.
(h) Filing of applications, eligibility, investigation of applicants, waiting lists.
(1) Every housing company shall have adequate supplies of applications on hand at all times at its business and sales office.
(2) Any bona fide resident of the State of New York who has reached his/her majority under the laws of the State of New York may file an application for the lease of a dwelling unit in a rental housing company or the purchase of shares in a mutual housing company, provided, however, that in developments assisted by a project-based Section 8 contract under the United States Housing Act of 1937, as amended, or assisted by a contract under Section 236 of the National Housing Act, as amended, any legal resident of the United States who has reached his/her majority under the laws of New York may file an application for such lease or such purchase of shares. No condition or limitation shall be imposed upon an applicant in connection with the filing or execution of an application other than:
(i) an application fee;
(ii) non-returnable fees to cover the cost of credit investigation, home visit or administrative costs; and
(iii) conditions set forth in applicable governmental authorizations, Land Disposition Agreements or other documents of such public nature. The application and non-returnable fees shall be in amounts approved by HPD. No applicant can be refused a place on an external waiting list for reason of financial ineligibility. Financial eligibility shall be determined at the time an apartment is offered. However, applicants shall be advised of the financial eligibility requirements at the time of applying.
(3) Applications shall be consecutively numbered and dated upon receipt by the housing company or shall be numbered pursuant to order of selection by lottery, as applicable. The housing company or its managing agent shall provide an applicant with a dated receipt or other form of documentation setting forth the date and/or waiting list number of the application. Applicants must meet the occupancy standards at the time of application and at the time the apartment is offered. No applicant may be placed on more than one waiting list by bedroom size in a particular housing company development. Applications are only transferable to spouses, siblings, or children who are at least eighteen years of age as of the date of the applicant's initial application, provided that (i) such spouse's, sibling's, or children's names appeared on the applicant's initial application, and (ii) the applicant appears in person in the housing company’s management office and provides a signed and notarized statement declaring surrender of his or her application to such eligible spouse, sibling or child. Each applicant shall only be entitled to one entry per lottery for a housing company development. Multiple entries shall result in disqualification from such lottery. Furthermore, an applicant whose name is selected in a lottery cannot be included in the family composition of any other applicant who is selected in the same lottery for that particular housing company development. Such inclusion in multiple selected family compositions also shall result in disqualification of all involved parties from such lottery.
(4) Each application, together with income and occupancy information and other data as hereinafter specified, shall be investigated by the housing company at the time an apartment is offered to determine the eligibility of the applicant. The data received by any housing company relative to tenant income shall be regarded as confidential in nature and protected accordingly to the extent permitted by law. In the case of a mutual housing company development, applicants approved by the mutual housing company shall upon notification of such approval be required to pay the balance of the purchase price of the shares allocated to the apartment. Thereafter, such application, together with supporting data, including a satisfactory credit history, and, in the case of a mutual housing company development, one copy of the contract for sale of shares approved by the housing company, shall be forwarded to HPD for its approval. Home visits conducted in connection with a credit check are permitted.
(5) Except for developments governed by 28 RCNY § 3-21, no applicant shall be given possession of an apartment until his or her application has been approved by HPD and he or she has executed an occupancy agreement or lease.
(6) Applications which are rejected by a housing company without being submitted to HPD shall have clearly marked thereon the reason for disapproval and shall be kept for a period of time as HPD may direct, and shall be available for examination by HPD. The applicant shall be advised in writing of the reason for his or her rejection and advised that he or she can appeal the rejection to HPD within thirty (30) days from the date of such written notification. Such appeal shall be in writing.
(7) The housing company may adopt a policy permitting or prohibiting guarantors that must be applied uniformly to all applicants. Where an applicant requires a guarantor to guarantee payment of rent/carrying charges to a housing company that has adopted a policy permitting guarantors, the managing agent shall conduct a credit check and income review of the guarantor to assure that guarantor is financially responsible.
(8) (i) All housing companies, whether mutual or rental, shall maintain all waiting lists on forms approved by HPD for all tenant / cooperator applications for apartments, listed in chronological order, by apartment size, by date of receipt or by order of selection by lottery, as applicable. All eligibility requirements for age, residency and family composition must be met by the cut-off date for the lottery. As used in this chapter, the term " tenant / cooperator" shall mean a tenant residing in an apartment in a rental development and/or a shareholder/proprietary lessee residing in an apartment in a mutual housing company development, as the case may be. These master waiting lists shall be kept in the management office. A conformed copy of the master waiting lists by apartment size shall be sent to HPD. Thereafter, on a semi-annual basis, or more frequently if requested by HPD, updated waiting lists shall be submitted to HPD. The waiting lists must reflect the status of each application, i.e. who received an apartment, who declined an apartment, who withdrew, or any other circumstances, including dates the actions were taken.
(ii) The opening and closing of all waiting lists shall be subject to prior written approval of HPD. The lottery for the units that become available through the opening of a waiting list must be advertised through the New York City Housing Connect/Mitchell-Lama Connect lottery system or any successor program administered by HPD to market vacant Mitchell-Lama units. Such lottery also must be advertised through advertisements that have been approved by HPD and published in at least two daily newspapers of general circulation and two publications known to have a high readership amongst minorities. Housing companies must thereafter select applicants from the New York City Housing Connect/Mitchell Lama Connect or successor program lottery. When a list has sufficient names on it to last for three years, the list may be closed by HPD. Waiting lists for various size apartments may be closed at different times as the particular apartment-size list attains sufficient names.
(iii) No application shall be taken or deposit accepted for a position on the waiting list subsequent to the official closing of such waiting list. Any application added to the waiting list after the official closing date shall be rejected by HPD.
(9) Each applicant and members of his or her household shall furnish an affidavit attesting to the gross household income for the preceding year and the anticipated gross household income for the current year. Each applicant and members of his or her household shall also be required to furnish to the housing company or HPD certified copies of tax returns filed by them with the Internal Revenue Service ("IRS") and the New York State Department of Taxation and Finance for the preceding or subsequent years for admission purposes as well as during their occupancy of a dwelling unit of the development. Applicant and members of his or her household shall assume the cost of obtaining certified copies for these purposes. Failure to provide certified tax returns when requested for admission purposes shall result in rejection of the application; failure to provide certified copies during occupancy shall result in imposition of maximum surcharges upon the tenant / cooperator.
(10) The waiting list shall be printed in a legible manner and shall be available for inspection by members of the Board of Directors, members of the Tenants Association, residents of the development, city officials and applicants. Both internal and external waiting lists must be posted in a format prescribed by HPD in the management office, or, if there is no management office, in the lobby of each building of the housing company development. Posted waiting lists shall exclude all personal information except for the first and last names of all active applicants. Names of applicants on such waiting lists shall appear in chronological order, by apartment size, by date of application receipt or by order of selection by lottery, as applicable.
(11) If, at any time, an applicant's name has been omitted from a waiting list in error, and said applicant can present adequate documentation satisfactory to the housing company or its managing agent to substantiate an earlier date of application for an apartment, applicant's name shall be inserted into the waiting list in the corrected date order. Requests to be reinserted into the waiting list cannot be made more than seven years after the date of the initial application and must be submitted to HPD for prior written approval.
(12) Except for the priorities mentioned below, the waiting list by apartment size in chronological order by date of receipt of application or order of selection by lottery, as applicable, shall be maintained in the following manner:
Type Apartment Desired (Example: 1 Bedroom)
Date of Request Name Address Business Telephone Residence Telephone Veteran yes or no
1/1/69 J. Doe XXX Ave. Y 123-4567 765-5432 yes
Selections of tenants or cooperators must be made from this list in chronological order or order of selection by lottery, as applicable.
(13) Notwithstanding anything to the contrary contained in this subdivision, an applicant on a waiting list for the lease of a dwelling unit in a rental housing company development or the purchase of shares in a mutual housing company development who, while he or she is on such waiting list, either (i) occupies a dwelling unit in such development in violation of this chapter, including, but not limited to, through failing to be included on the income affidavit for such dwelling unit or through submitting IRS or New York State income tax returns in conjunction with such applicant's application that reflect a different income than the income reported on such dwelling unit's income affidavit, or (ii) submits any material false, fraudulent or misleading statement, representation, documentation or other information in connection with an application, certification of eligibility or recertification of eligibility for any governmentally-provided affordable housing assistance or subsidy, shall be removed from such waiting list.
(14) Any applicant on an external waiting list may file a written request with the managing agent of a housing company, with a copy provided to HPD, that his or her application be put on hold for one year provided that (i) such written request is filed by the later of (A) at least thirty days in advance of the proposed commencement of such one year hold period or (B) no more than five business days after receiving an offer from such housing company, (ii) if such applicant does not notify the managing agent of such housing company in writing, with a copy provided to HPD, at least thirty days prior to the expiration of such one year hold period that he or she would like to remain on such external waiting list, such applicant shall not be reinstated to such external waiting list at the expiration of such one year hold period, and (iii) no applicant shall be entitled to request more than one such hold during the time period in which such applicant remains on the external waiting list.
(15) The stock certificate and occupancy agreement for an apartment in a mutual housing company development or the lease for an apartment in a rental housing company development, as applicable, shall, at initial occupancy, name only one person who is offered and accepts such apartment, regardless of whether the application for such apartment named more than one applicant. Notwithstanding the forgoing, (i) such lease or stock certificate and occupancy agreement may include the names of two persons at initial occupancy, provided that such persons are spouses, (ii) after initial occupancy, spouses may be added to a stock certificate and occupancy agreement in accordance with the provisions of subdivision (c) of 28 RCNY § 3-06, and (iii) after initial occupancy, spouses may be added to a lease, provided that they meet the same criteria as apply to the addition of spouses to stock certificates and occupancy agreements as set forth in subdivision (c) of 28 RCNY § 3-06.
(i) Occupancy priorities. The following occupancy priorities shall apply to all housing companies:
(1) First priority. Tenant / cooperators currently residing in a development whose household composition renders them eligible for a smaller apartment shall be given first priority for an internal transfer. Tenant / cooperators currently residing in a development whose household composition renders them eligible for a larger apartment shall be given first priority for the first three out of every four apartments that become available and the fourth such apartment that becomes available shall be set aside and offered to an applicant on the external waiting list in accordance with the provisions contained in paragraph (3) of this subdivision. No priority shall be given to residents seeking additional apartments for members of their household, or for non-resident family members or any other parties. Furthermore, no members of the household, non-resident family members or any other parties shall have occupancy rights to the vacated apartment once the transfer is effectuated. The housing company shall maintain an internal transfer list by apartment size, listed in chronological order by date of receipt of transfer request. If, at any time, a tenant / cooperator's name has been omitted from the internal transfer list in error, and said tenant / cooperator can present adequate documentation satisfactory to the housing company or its managing agent to substantiate an earlier request for a transfer, said tenant / cooperator's name shall be inserted into the internal list in the corrected date order. Insertions to the internal transfer list shall be submitted to HPD for prior written approval.
A tenant / cooperator on an internal transfer list, whose household composition so changes as to render him or her ineligible for the apartment size requested, shall be placed on the appropriate size apartment list as of the date when the change occurred or the date the original request is made, whichever is later; provided, however, that, except for enlargement of a household due to birth or adoption, the change to a larger household composition must have occurred at least one year prior to placement on the internal transfer list. If a tenant / cooperator is offered an apartment as an internal transfer and he or she is no longer eligible for that size apartment due to a change in household composition, his or her name shall then be placed on the appropriate size apartment list as of the date when the change occurred which made him or her ineligible.
The tenant / cooperator must meet the occupancy standards for the size apartment requested at the time that he or she places his or her name on the internal transfer list and must have been in residence for a period of no less than one year before he or she may request a transfer to a larger apartment. The income affidavit submitted by the tenant / cooperator on file with the housing company or its managing agent must reflect a sufficient number of occupants to warrant a transfer at the time of his or her request, as well as when an apartment is offered. The housing company or its managing agent shall deny a transfer to the tenant / cooperator if he or she fails to satisfy these requirements. No transfer request will be accepted based on pregnancy. No transfer of apartments shall be effected if the tenant / cooperator seeking the transfer is in arrears in rent/carrying charges, surcharges, capital assessments, submetering charges or any other fees or charges. The housing company shall advise the tenant / cooperator in writing of its denial of a request for transfer.
The tenant / cooperator shall be required to pay a surcharge effective the first day of the month following his or her residency in the new apartment if his or her income exceeds the maximum allowable for that apartment.
(2) Second priority. Pursuant to § 31(7) of the Private Housing Finance Law, preference in admission to a project with an open waiting list, as determined by HPD, shall be given to persons who are veterans as such term is defined pursuant to § 85 of the Civil Service Law or their surviving spouses, and for projects with a closed list, as determined by HPD, preference shall be given upon the opening of the waiting list to such veterans or surviving spouses that are selected in the lottery for such opened waiting list. This preference in admission shall only be provided to veterans or surviving spouses whose names appear on the waiting list as the applicants of record and who have identified themselves as the heads of household on their applications. No veteran or surviving spouse shall be entitled to benefit from a preference for admission pursuant to this paragraph more than one time and, furthermore, the inclusion of a veteran or surviving spouse as a member of the household shall not entitle any other applicant of record to this preference in admission.
(3) Third priority. Persons listed on the external waiting lists by apartment size in strict chronological order by date of receipt of application or order of selection by lottery, as applicable. Family members of a tenant / cooperator, whether or not members of the tenant / cooperator's household, shall not receive preferential treatment on the waiting lists.
(4) The above priorities shall not be applicable to staff or student housing or to housing for the elderly or disabled except as such priorities apply within each special category. Preference in admission to any development or to such portion of any development which has been specifically designed for occupancy by elderly or disabled persons, as the case may be, shall be given to such persons.
(j) Application fee for rentals and mutual housing companies. A rental or mutual housing company development shall require a nonrefundable application fee of $75 at the time of submission of an application for an apartment, unless such a fee is not permitted by an applicable federal or state law. If an apartment is offered to an applicant and the applicant does not accept the apartment, the housing company may remove the applicant from the waiting list. A housing company shall not offer an applicant an apartment more than two times.
(k) Security deposit for purchase of cooperative shares. A mutual housing company may, at its option, require an applicant for a mutual housing company apartment to submit, along with his/her written acceptance of said apartment, a security deposit of up to one month's carrying charges which may be retained by the housing company and apportioned between the housing company and the outgoing cooperator to reimburse them respectively for their losses in the event the applicant withdraws his or her acceptance of the apartment.
(l) Verification of income at time of admission and during occupancy.
(1) Admission income verification. The housing company or its managing agent shall verify the aggregate income of each applicant and members of his or her household prior to admission to the development in the following manner:
(i) Each applicant shall furnish an affidavit attesting to the gross household income of his or her household for the preceding year and the anticipated gross household income for the current year. All members of the household must be listed on the income affidavit whether or not income was earned.
(ii) Each applicant and each member of the household having any income shall furnish proof of income by supplying copies of W-2 forms filed by them for the preceding year, or a statement from their employer setting forth their current rate of income and their total earned income for the immediately preceding year and a copy of their IRS or New York State income tax returns for the immediately preceding year. HPD or the housing company may require submission of certified income tax returns for admission purposes. Each self-employed applicant and self-employed member of the household who will reside with the applicant shall furnish a certified copy of his or her IRS and New York State income tax returns for the immediately preceding year. Applicants and members of the applicant's household shall pay the cost of obtaining certified copies of their income tax returns.
(iii) A copy of amendments to any tax returns, or of tax assessments shall be furnished to the housing company within 30 days after filing the amendment or receipt of notice of the assessment.
(iv) Additional proof of eligibility may be requested by the housing company or HPD.
(2) Income verification during occupancy. During occupancy, a tenant / cooperator and members of his or her household shall submit when requested by the housing company, its managing agent or HPD certified copies of their IRS and/or New York State income tax returns for audit or verification purposes with regard to continued eligibility, surcharges or any other valid purpose. The tenant / cooperator and members of his or her household shall assume the cost of obtaining such certified copies.
(3) Failure to provide certified income tax returns or other documentation. Failure to provide certified copies of income tax returns or other required documentation shall result in denial of admission to new applicants and imposition of the maximum surcharge to those already in occupancy.
(m) Occupancy standards.
(1) Apartments shall be offered for occupancy as they become vacant in accordance with the standards set forth below (occupancy standards shall be applied without regard to the pending birth or pending adoption of a child):
(i) Efficiency (no bedrooms) and one bedroom apartments. One to three people.
(ii) Two bedroom apartments. Two to four people.
(iii) Three bedroom apartments. Four to six people.
(iv) Four bedroom apartments. Five to eight people.
(v) Five bedroom apartments. Seven to ten people.
(vi) All apartments. In all cases the tenant / cooperator named on the lease must be at least eighteen years of age and must actually occupy the apartment as his or her primary residence.
(vii) HPD may grant waivers of occupancy standards for medical reasons and for internal transfers of tenant / cooperators currently residing in a development whose household composition renders them eligible for a smaller apartment.
(2) Except as otherwise provided by paragraph (1) of subdivision (i) of this section, priority shall be given to internal transfers in the offering of all vacant apartments.
(n) Lease and occupancy agreements.
(1) No tenant / cooperator shall be permitted to occupy an apartment until an executed lease or occupancy agreement has been approved by HPD. The minimum term of such lease or occupancy agreement shall be one year.
(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's name is listed on income documentation that must be sent by the tenant / cooperator to the Department or to any other governmental agencies (for example: income affidavits, re-certifications or Section 8 forms) for the most recent preceding year for which such documentation was required. 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 each year of residency for which such return should have been filed or that the tenant / cooperator was not legally obligated to file such tax return pursuant to § 11-705(b)(1)(A) and § 11-1751(a) of the Administrative Code due to residency in a foreign country or pursuant to § 11-1751(a) of the Administrative Code and § 6-01 of the Tax Law because the tenant / cooperator's income for such year was below that required for the filing of a return or pursuant to § 893 or 894 of the Internal Revenue Code due to employment by a foreign government or international organization or due to any treaty obligation of the United States which applies to such taxpayer. 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.
(5) The terms and conditions of all licensing agreements and all tenancies, including tenancies of commercial and professional space, shall be subject to HPD written approval.
(o) Applicability of Section 235-f of the Real Property Law.
(1) Definition of terms. Section 235-f of the Real Property Law of the State of New York shall apply to all housing companies, subject to the restrictions set forth in this section. As used in this subdivision (o), the term "occupant" shall mean a person, other than a tenant / cooperator, residing together with the tenant / cooperator in an apartment in a rental or mutual housing company development subject to these rules, who is not a party to the lease or occupancy agreement, including, but not limited to, a member of a tenant / cooperator's immediate family, whose occupancy has been approved by the housing company and HPD.
(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.
(3) Status of occupant.
(i) No occupant, except as otherwise set forth in subdivision (p) of this section, shall have any rights under the lease / occupancy agreement for the apartment or to succeed to the rights of the tenant / cooperator, if the tenancy of the tenant / cooperator terminates. Acceptance by the housing company of full or partial payment of rent/carrying charges from an occupant, by check or otherwise, shall not give the occupant any rights of tenancy under the lease / occupancy agreement or otherwise.
(ii) Each occupant shall be required to furnish to the housing company such financial and other information, on an annual or more frequent basis, that the tenant / cooperator is required to furnish to the housing company, in the form that the tenant / cooperator is required to furnish such information, including by affidavit. Where the rental or carrying charge for an apartment, or a rental surcharge, is based on the income of persons residing in the apartment, the income of the occupant shall be included in such computation.
(iii) The tenant / cooperator and the occupant shall occupy the apartment as their primary residence, and the occupant shall represent his or her intention to do so prior to commencing occupancy.
(p) Occupancy rights of family members.
(1) The rights of family members of a tenant / cooperator who have requested to remain as the lawful tenant / cooperator are governed by policies and procedures set forth in this subdivision, except in those instances where this subdivision is preempted by the rules or regulations of other federal, state or city programs.
(2) As used in this subdivision the following definitions shall apply:
(i) " tenant / cooperator" shall mean any person named on a lease as a lessee or who is a party to a rental agreement or proprietary lease and obligated to pay rent or carrying charges for the use or occupancy of an apartment.
(ii) "Family member" shall mean:
(A) 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 / cooperator.
(B) Any other person residing with the tenant / cooperator in the apartment as a primary residence who can prove emotional and financial commitment and interdependence between such person and the tenant / cooperator. Although no single factor shall be 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 / cooperator for the apartment 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, person and real property, credit cards, loan obligations, sharing a household budget for purposes of receiving government benefits, etc.;
(d) engaging in family 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, registering a domestic partnership pursuant to Executive Order No. 48, dated January 7, 1993 or Local Law No. 27 of 1998, serving as a representative payee for purposes of public benefits, or other such formalizations;
(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 words 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;
(h) engaging in other patterns of behavior, or other action which evidences the intention of creating a long-term, emotionally committed relationship.
In no event shall evidence of a sexual relationship between such persons be required or considered.
(iii) "Disabled person" shall mean a person who has an impairment which results from anatomical, physiological or psychological conditions, other than addiction to alcohol, gambling, or any controlled substance, which is demonstrable by medically acceptable clinical and laboratory diagnostic techniques and which is expected to be permanent and to substantially limit one or more of such person's major life activities.
(iv) "Senior citizen" shall mean a person who is sixty-two (62) years of age or older.
(3) Unless otherwise prohibited by occupancy restrictions based upon income limitations pursuant to federal, state or local law, regulations or other requirements of governmental agencies, if the tenant / cooperator has permanently vacated the apartment, any member of such tenant / cooperator's family, who has resided with the tenant / cooperator in the apartment as a primary residence, as determined by 28 RCNY § 3-02(n)(4), for a period of not less than two years immediately prior to the tenant / cooperator's permanent vacating of the apartment, and whose name is listed on any income documentation submitted by such tenant / cooperator to the Department or to any other governmental agencies (for example: income affidavits, re-certifications or Section 8 forms), for at least the two consecutive annual reporting periods immediately prior to the tenant / cooperator's permanent vacating of the apartment or where such person seeking succession rights is a senior citizen or disabled person, for a period of not less than one year immediately prior to the tenant / cooperator's permanent vacating of the apartment, and has appeared on such income documentation for at least the reporting period immediately prior to the permanent vacating of the apartment by the tenant / cooperator, or from the inception of the tenancy or commencement of the relationship if for less than such periods, and the apartment was and continues to be the primary residence of the member of the tenant / cooperator's family that resided with such tenant / cooperator, may request to be named as a tenant / cooperator on the lease and where applicable on the stock certificate. The failure of the family member who is seeking to succeed to possession of the apartment to appear on the appropriate income affidavits creates a presumption that he or she did not reside in the apartment as a primary residence. In the event that HPD has authorized the housing company not to collect surcharges based on income documentation, the family member shall be asked to provide other evidence of occupancy for the required period of time. The burden of proof is on said family member to show use of the apartment as his or her primary residence during the required period to be eligible to succeed to possession.
(4) Family members do not have the right to succeed the tenant / cooperator in occupancy if the housing company terminates the tenancy of a tenant / cooperator for cause.
(5) The minimum periods of required residency set forth in this section shall not be deemed to be interrupted by any period during which the family member who is seeking succession rights temporarily relocates because he or she:
(i) is engaged in military duty;
(ii) is enrolled as a full-time student, and the family member resided in the subject apartment as a primary residence (as determined pursuant to paragraph 4 of subdivision (n) of this section) for at least two years immediately prior to the family member's enrollment as a full-time student;
(iii) is not in residence at the apartment pursuant to a court order not involving any terms or provisions of the lease / occupancy agreement, and not involving any grounds specified in the Real Property Actions and Proceedings Law;
(iv) is engaged in employment requiring temporary relocation from the apartment;
(v) is hospitalized temporarily for medical treatment; or
(vi) has other reasonable grounds that shall be determined by HPD upon application by such person.
(6) The housing company shall secure credible evidence of the tenant / cooperator's permanent removal from the apartment and the surrender of the apartment or the tenant / cooperator's written declaration to vacate the apartment prior to the consideration of re-letting or succession to the apartment by a family member.
(i) Where a tenant / cooperator has died, the lease and shares of stock for such decedent's apartment shall be surrendered by the decedent's estate or survivors to the housing company.
(i-1) When a member of a tenant / cooperator's family residing in the apartment as a primary residence as set forth in paragraph (3) of this subdivision is granted succession rights, the housing company shall transfer the shares, other value assigned to the apartment and/or the lease to said family member.
(i-2) When there is no succession claim or a claimant is denied succession rights, and a legally recognized estate of the deceased tenant / cooperator requests the value of the shares and other value assigned to such decedent's apartment, the housing company shall remit such value, less any charges against such shares and other value that are permitted by this chapter, to such estate.
(i-3) When there is no succession claim or a claimant is denied succession rights, and no legally recognized estate of the deceased tenant / cooperator makes a claim for the value of the shares and other value assigned to such decedent's apartment within one hundred twenty days of the death of said tenant / cooperator, such shares shall be transferred to the housing company and shall be offered for sale in accordance with this section. The housing company shall hold the value of such shares and other value assigned to such decedent's apartment, less any charges against such shares and other value that are permitted by this chapter, for a legally recognized estate until such time that a lawful claim for such is recognized in a court of law.
(ii) If there is a legal dispute or claim involving who is rightfully entitled to the value of the shares, mortgage amortization and capital assessment contributions assigned to an apartment in a mutual housing company, such legal dispute or claim shall not affect the rights of such family members as set forth in paragraph (3) of this subdivision.
(iii) If a court of law determines that someone other than such family members as set forth in paragraph (3) of this subdivision is entitled to the value of the shares, mortgage amortization and capital assessment contributions assigned to the apartment, such matter shall be resolved between such party and such successor family members without recourse to the housing company.
(7) The housing company and/or HPD shall have the option of requiring any proposed successor to move to a smaller apartment in the development, in the event the apartment in question is or would become underoccupied according to occupancy standards set forth in subdivision (m) of this section.
(8) Where a family member applies to the housing company for permission to remain in occupancy as a tenant / cooperator, the housing company shall act on the application within thirty (30) days of receipt by either requesting that HPD approve the application or by denying the application and notifying the applicant family members in writing of its determination.
(i) In the event the housing company denies such application, the notice to the applicant shall set forth in writing the reasons why the evidence submitted was deemed inadequate and resulted in such denial and inform the applicant of the right to appeal and the method of appeal.
(ii) A family member whose application to succeed to a lease or an occupancy agreement has been denied by a housing company may, within thirty (30) calendar days of receipt of the written denial, appeal to the Commissioner of HPD (hereinafter "Commissioner") or his or her designee. Such appeal shall include proof of service of a copy of such appeal upon the housing company. The appeal shall briefly set forth the reasons why the family member believes he or she is entitled to occupy the apartment and any errors or erroneous findings he or she believes are contained in the housing company's determination. The Commissioner or his or her designee shall review the housing company's determination and any additional information submitted by the applicant and shall issue the final agency decision with regard to the applicant's application. The only review of this determination is pursuant to Article 78 of the Civil Practice Law and Rules.
(iii) Pending the agency's determination, the applicant may continue in occupancy and shall be required to pay for the use and occupancy of the apartment in an amount equal to the monthly rental/carrying charge paid by the vacating tenant / cooperator.
(iv) In the event the agency determines that the applicant is ineligible to remain in occupancy then such applicant shall vacate the apartment or the housing company may seek to terminate the occupancy without any further approval by HPD.
(9) This subdivision shall not apply to staff housing where employment at the institution is a primary requirement for residency. It shall also not apply to housing designated for senior citizens or the disabled, unless such succeeding family member would have qualified for an apartment as an original tenant.
(q) Payment of rent and deposit of security.
(1) A rental housing company may require all new tenants to deposit as security an amount equal to a maximum of two months' rent, or such amount as may be approved by HPD at the time of signing the lease except where federal law or regulations prohibit. Commercial or professional tenants may be required to deposit as much rent as security as the housing company requires.
(2) Each rental housing company is required to open an interest bearing bank account in accordance with § 7-103 of the General Obligations Law.
(r) Unauthorized payments. No company, associate, director, officer, employee, agent or other person shall solicit or receive, directly or indirectly, any commission, bonus, gratuity, fee or any other payment not expressly authorized by HPD from any person interested directly or indirectly, in the filing of an application or in obtaining a lease or occupancy agreement. Violation, in whole or in part, of Penal Law, § 180.55 by any agent, subagent, or employee of the agent is a crime and may be grounds for the cancellation of a sales or rental agreement or managing agent's agreement by HPD.
(Amended City Record 7/13/2016, eff. 8/12/2016; amended City Record 8/14/2019, eff. 9/13/2019; amended City Record 6/20/2023, eff. 7/20/2023)
