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 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 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. In the event that the plan becomes subject to
G.B.L., section 352-e(2-a) after the plan was accepted for filing:
(a) the plan must be amended immediately
after the statute becomes applicable to such offering, and
(b) 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 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 nonpurchasing
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) In
the absence of fraud, 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 these regulations;
(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 his or her election to be an eligible senior
citizen or eligible disabled person and shall request him or her to submit an
answer to the application on a form prescribed by the Department of Law and
furnish information or documentation bearing on the specific grounds raised by
sponsor to dispute the election.
(i) 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 evidence received, the
Department of Law shall issue a written determination of eligibility.
(c)
Sale of units occupied
by eligible senior citizens and eligible disabled persons.
(1) 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 challenge the
eligibility of the occupant of the unit.
(2) Where the sponsor has disputed the
eligibility of a person seeking an exemption, the unit 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 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 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 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 on the terms then offered to tenants in occupancy.
