Prevent Former Super from Becoming Rent-Stabilized Tenant

If you are not careful when you hire a super who will live in a rent-stabilized apartment in your building, the super could maintain rights as a rent-stabilized tenant when he later quits or is fired from his job.

By law, the building superintendent is an employee of the owner. But the owner-employee relationship can become confusing if the owner treats the super as a tenant as well.

In one case, an owner was liable for a super's guest's lead poisoning, even though the owner had no knowledge that a child lived in the super's apartment. The super had allowed her friend and the friend's child to live with her, rent free. And when the owner sent the super a lead paint notice in January 1993, she answered “no” to questions on the notice form asking if there was peeling paint in the apartment and whether a child under age 7 lived there. The owner asked the court to dismiss the lead poisoning case, claiming that it had no knowledge that there was peeling paint or that a child lived in the apartment. However, the court ruled that the owner supervised the super's work. And as her employer, the owner is considered to be on notice that the child was in the apartment, even if the super never told the owner [Moya v. City of New York, August 2005].

If you have a live-in super, it is important to be able to show that the apartment is not rent stabilized while the super lives in it. Otherwise, you won't be able to evict the super, because he will have the right to remain in the apartment—and you may have the added headache of dealing with a disgruntled ex-employee living in your building.

Three Guidelines for Hiring a Super

If an employee lives in one of your rent-stabilized apartments, the apartment is not subject to rent stabilization, according to Section 2520.11(m) of the Rent Stabilization Code, if the employee:

• Pays no rent;
• Gets to live in the apartment as part or all of his compensation for the job; and
• Works in the building where the apartment is located.

Here are three guidelines you can follow when you hire a live-in super that can prevent him from remaining in an apartment as a rent-stabilized tenant after his employment ends:

Don't offer a lease. A court or the Division of Housing and Community Renewal (DHCR) will view a lease as a sign of a landlord-tenant relationship and likely rule that the super is a tenant when his job ends. If the super has no lease, you have a better chance of winning a dispute.

For example, when a building super moved into an apartment, the owner gave her a rent-stabilized lease. The owner also gave the tenant rent-stabilized renewal leases but never raised the rent. The owner registered the super's apartment as employee-exempt. But after the super's employment was terminated, the owner asked the DHCR if the former super was rent stabilized. In an opinion letter, the DHCR replied yes, and stated that the owner's rent registrations were in error [DHCR Opin. Ltr., January 2003].

Don't charge rent. Don't charge the super rent for the apartment, not even a reduced rent. If the super pays any rent at all, the apartment is subject to rent stabilization. You are better off paying the super less wages in exchange for the apartment rather than charging a reduced rent.

In one instance, a tenant moved into a rent-stabilized apartment in the mid-1980s under an oral rental agreement. The tenant agreed to perform light superintendent duties in exchange for a reduced rent of $200 per month. The owner asked the DHCR if the tenant remained subject to rent stabilization a number of years later when he no longer worked as the building super. The DHCR said yes. An apartment occupied by a building super is exempt from rent stabilization only if the apartment is provided as part or all of the super's compensation and the super doesn't pay any rent. The DHCR said that since the super here paid some rent, he is a rent-stabilized tenant [DHCR Opin. Ltr., September 1999].

Don't ask a current tenant to become super. This situation is a common mistake owners make when hiring a super. Once someone is a rent-stabilized tenant in your building, you can't cut off his rights by making him the super. He will revert back to his rent-stabilized tenant status when the job ends.

For example, an owner sued to evict a former building superintendent after the super's employment was terminated. The super had lived in the building for 54 years and claimed that she was a rent-controlled tenant. The super presented 1968 orders from the Office of Rent Control listing her as a rent-controlled tenant. And the super also presented proof that at one time she had paid rent. The court ruled for the super, finding that she was a rent-controlled tenant. She didn't live in the apartment solely as a condition of her employment, and couldn't be evicted merely because she no longer worked for the owner [165 S. 9th Realty Corp. v. Bumgardner, March 1999].

In another instance, the owner fired the super and tried to evict him. The super had lived in the building one year before being hired by the owner, and continued to pay rent during his first 15 years on the job. But he lived in the apartment rent free for the next 10 years. The owner argued that the DHCR had previously ruled that the super-occupied apartment was exempt from rent stabilization. And the super argued that his right to the apartment survived the end of his job because he was a tenant before being hired.

The court ruled in favor of the super. The super had moved in as a tenant before becoming an employee, so the initial landlord-tenant relationship remains in effect [Gottlieb v. Adames, September 1994].

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