The Reason for Commencing an Owner Use Proceeding Must Remain Consistent

A vehicle through which a landlord can recover a rent stabilized apartment is through what is called an owner use proceeding (sometimes called a personal use proceeding). Essentially, if a landlord can show that he/she intends to occupy a rent stabilized tenant's apartment as the landlord's (or a fmaily member's) primary residence then the landlord can evict the tenant for that purpose.Procedurally here is how it works - a landlord is normally obligated to serve a rent stabilized tenant with a renewal lease offer between 90 and 150 days prior to the expiration of the lease term and the tenant is free to choose a 1 or 2 year renewal term. If the landlord wishes to recover the apartment for his/her own use then instead of serving the renewal lease the landlord will serve a notice informing the tenant that the landlord intends to recover the apartment for his/her (or a family member's) personal use during that same window period of 90-150 days prior to the expiration of the lease term. In addition the landlord must also serve a 30 day notice of termination that coincides with the last day of the lease term. Most experienced landlord-tenant attorneys will serve a combined notice that provides the information required within the 90-150 day window period as well as the termination information required in the 30 day notice (often called a "Golub" notice).The predicate notice for the owner use proceeding is unique amongst notices that serve as a predicate to commencement of landlord-tenant cases in that the owner use notice describes what will happen in the future. All other notices that come to mind describe conduct that has already happened.Appellate courts and Housing Court judges have been quite strict in mandating that Golub notices provide a great deal of information about why the landlord wants to recover the apartment in question. Generally the Golub notice must state the following:1. The relationship between landlord and tenant;2. The precise address of the apartment to be recovered;3. The ground upon which non-renewal is based (a recitation of the rent stabilization code section permitting the soon to be commenced lawsuit);4. The exact termination date and;5. The facts upon which the ground is based.It is the factual part of the Golub Notice that is most important. Case after case has held that it is not enough to merely track the language stated in the statute. Instead the landlord must convincingly state why the landlord wants to recover the apartment while stating sufficient facts to explain the "why" so that a tenant and a Housing Court judge will understand - and basically pass judgment - on whether the "why" is legitimate.Why a landlord wishes to recover a rent stabilized could be for many, many reasons. Perhaps the landlord's family is expanding. Perhaps the landlord has a family member suffering from an illness and needs to move in with the landlord to receive care from the landlord. Perhaps a landlord wishes to turn a small apartment building into a single family residence.What is crucial is that whatever was the "why" at the time that the Golub notice was sent must be the same "why" when the landlord conducts the trial. The landlord's intent must be the same intent when the Golub Notice is sent as it will be when the case is being litigated.A recent case from the Housing Court emphasizes this point and follows precedent on this subject. A landlord had sent a Golub Notice explaining that the landlord wanted to recover a rent stabilized apartment for the use of the landlord's granddaughter. The case was then litigated. During the litigation it was revealed by the landlord that the granddaughter was no longer able to use the apartment but that the landlord still wanted to recover the apartment because the landlord's grandson was to use it instead. The tenant moved to have the lawsuit dismissed arguing that the landlord's intention cannot change and that the landlord was required to prove that the granddaugher (and no other) was to be the primary resident of the subject apartment. The landlord argued that the crux of the case had not changed and that the landlord still wanted to use the apartment for family. In other words, the landlord argued nothing had changed except for the "why".Housing Court Judge Schreiber granted the tenant's motion and dismissed the lawsuit. Judge Schreiber explained that once a landlord formulates and states the intent to recover the apartment, the landlord's intention cannot change. If the intention changes then the Golub Notice becomes invalid and if the Golub Notice is invalid then the case itself can no longer stand. The lesson to be learned for landlords is that when sending a Golub Notice the landlord must be consistent and cannot come up with a new plan once a plan has been revealed. The lesson to be learned for tenants is that when defending an owner use proceeding the tenant should put the landlord to his/her proof. Investigate the basis of the notice and make sure that the "why" is in fact true. The case described above is Harmon v. Mervine, 34 Misc.3d 1218(A) (N.YCiv.Ct. J.Schreiber 2012).