OMI Units

My mother lives in one of the units in my building.  Recently, she has needed more help and I would like to vacate one of the units so that I can stay over on nights when she needs me.  I don’t plan to make the unit my primary residence; I just want to sleep over occasionally.  How can I get my unit back for this purpose?

This question highlights one of biggest shortcomings of the rent law.  While rent control was enacted almost thirty years ago to safeguard safe, decent, and affordable housing, it oftentimes creates glaring injustices for honest rental housing providers. Like in this case, where the owner, who legitimately needs a unit for part time use in order to care for his mother, cannot compel any tenant in the building to vacate.

The owner move-in (or “OMI”) law mandates that an owner may recover possession of a rental unit in order to owner occupy it if that unit becomes the primary residence for a period of at least thirty-six consecutive months after the tenant vacates.  Specifically, the owner can only have one principal place of residence in the world, and there are a series of tests to determine whether or not the unit is being used as such. Driver’s license, vehicle registration, and tax returns must reflect that the unit is the owner’s home, and, most importantly, the unit must be the place of return absent excused departures for work, education, military service, hospitalization, or the like.

The penalties for violating this law are severe:  The owner can be sued by the tenant and the City in civil court, and the District Attorney’s Office may also institute criminal proceedings.  Thus, a landlord should never even consider doing an OMI unless the unit will be used as a principal place of residence.

In this instance, if there are no available units in the building, the owner has two choices.  First, the building’s rental units could be withdrawn under the Ellis Act.  This state law allows a landlord to take all of the units off of the rental market for a five-year period; unfortunately, invoking the Ellis Act requires every tenant to vacate, which oftentimes leave dwellings empty and unused.  The second option is approaching tenants with an offer to be “bought out” of their tenancy.  While tenants cannot waive their rent control rights, tenants who voluntarily elect to leave for a sum of money may do so, and if there is no coercion or underhanded tactics, most landlord and tenant legal professionals believe that a mutually desired buy-out is legitimate and cannot become the basis of a lawsuit once the tenant leaves.  However, because buy-outs are strictly voluntary and rescindable until the tenant actually vacates, there is absolutely no certainty that a buy-out can occur.

In sum, this owner faces a difficult dilemma, and should consult a qualified attorney before initiating an OMI, Ellis Act, or buy-out negotiations.  The altruistic desire to care for a parent is not a ground to terminate someone’s tenancy, so the options discussed here provide, at this time, the only potential of using a unit as a part-time abode.

–Dave Wasserman  

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