Current through Register Vol. 46, No. 39, September 25, 2024
(a)
Election.
A tenant may elect not to purchase as an eligible senior
citizen or eligible disabled person as defined in G.B.L., section 352-e(2-a) or
352-eeee, or as an eligible disabled person as defined in G.B.L., section
352-eee, within 60 days from the presentation date by completing the applicable
form, SH-1 or SH-2, prescribed by the Department of Law and included in the
offering plan immediately preceding the introduction page, signing the election
form and having the signature notarized, and personally delivering it to the
named sponsor or selling agent at a location specified by the sponsor in the
plan or by mailing it by certified or registered mail, return receipt
requested, to the named sponsor or selling agent at an address specified by the
sponsor in the plan. G.B.L., section 352-eee does not require that a tenant
file an election form in order to qualify as an eligible senior citizen.
However, it is advised and requested that a tenant, who believes he or she is
or will become an eligible senior citizen within 12 months from the date the
plan is filed, complete the election form SH-5 promulgated by the Department of
Law and included in the plan. This senior citizen election form should be
completed, signed, notarized and returned to the sponsor within 60 days of
presentation of the offering plan. In the event that the plan becomes subject
to G.B.L., section 352-e(2-a) after the plan was accepted for filing, the plan
must be amended immediately after the statute becomes applicable to such
offering, and such election may be made within 60 days of presentation of such
amendment.
(1) An SH-1 or SH-2
election form is timely if it is personally delivered or postmarked before
midnight of the 60th day after the presentation date, subject to statutory
rules of construction. An SH-5 election form may be delivered at any
time.
(2) The sponsor or selling
agent shall acknowledge receipt of the election form and promptly return an
acknowledged copy to the nonpurchasing tenant.
(b)
Determination of disputed
elections.
A sponsor who disputes the election by a non-purchasing
tenant to be an eligible senior citizen or an eligible disabled person must
apply to the Department of Law for a determination of the person's eligibility
within 30 days following receipt of the election form.
(1) The application is timely if it is
personally delivered to the New York State Department of Law, Real Estate
Finance Bureau, 28 Liberty Street, New York, NY 10005, during business hours or
postmarked before midnight of the 30th day following receipt by the sponsor or
agent of the election form.
(2) An
untimely application will not be entertained, in which case the tenant whose
eligibility is disputed will be deemed eligible under the statute.
(3) The application shall include the
following:
(i) one copy of the election
form;
(ii) one original and one
copy of an affidavit, sworn to by a person having knowledge of the facts,
setting forth the following:
(a) that the
application is timely in accordance with this Part;
(b) the specific ground(s) for disputing the
election; and
(c) the basis for the
affiant's statement that the tenant is not an eligible senior citizen or
eligible disabled person;
(iii) two copies of all supporting
information or documentation in the possession of the sponsor or the affiant
bearing on eligibility.
(4) The application must be complete at
submission.
The Department of Law need not consider any additional or
supplemental information subsequently submitted by sponsor.
(5) The Department of Law shall notify the
person that the sponsor disputes the person's election to be an eligible senior
citizen or eligible disabled person; and shall request the person to submit an
answer to the application on a form prescribed by the Department of Law and
support the answer with information or documentation bearing on the specific
grounds raised by sponsor to dispute the election. The answer and supporting
documentation must be submitted to the Department of Law within 10 days of the
date of the notice from the Department of Law. Failure to submit an answer
shall not preclude the Department of Law from issuing a
determination.
(6) The Department
of Law may, in its discretion, require the attendance and giving of testimony
by witnesses and the production of papers, documents, books and other evidence
concerning the issues raised. A witness shall be notified that he or she may be
represented by counsel.
(7) On the
basis of the evidence received, the Department of Law shall issue a written
determination of eligibility.
(c)
Sale of units or shares allocated
to units occupied by eligible senior citizens and eligible disabled
persons.
(1) A unit or shares allocated
to a unit occupied by an eligible senior citizen or eligible disabled person,
or a person seeking exemption as an eligible senior citizen or eligible
disabled person, may not be offered to a third party during any exclusive
purchase period granted to bona fide tenants in occupancy unless the sponsor,
in writing, waives any right to dispute the eligibility of the occupant of the
unit.
(2) Where the sponsor has
disputed the eligibility of a person seeking an exemption, the unit or shares
allocated thereto may not be offered to a third party for 30 days after the
Department of Law has made its determination of eligibility. If a proceeding to
review such determination is commenced under article 78 of the Civil Practice
Law and Rules in a court of competent jurisdiction, the unit or shares
allocated thereto may not be offered to a third party for 30 days after notice
of entry of the final order in such proceeding. If such final determination or
order finds that the person seeking the exemption is not an eligible senior
citizen or eligible disabled person, such person may purchase the unit or
shares allocated thereto, within 30 days thereafter, on the most favorable
terms offered to tenants in occupancy at any time prior thereto; provided,
however, that if such final determination or order includes a finding that the
exemption was sought fraudulently or in bad faith, such person may purchase the
unit or shares allocated thereto as provided in paragraph (3) of this
subdivision.
(3) Notwithstanding an
election not to purchase, an eligible senior citizen, or eligible disabled
person may purchase the unit or shares allocated thereto on the terms then
offered to tenants in occupancy.
