There are owners of TORCA units who seek to obtain possession of these units from the rent controlled tenant. If the tenant is a participating tenant, i.e., a tenant that participated in the conversion and lived in the unit at the time of the conversion, then there are protections against owner-occupancy evictions. However, if the tenant is a non-participating tenant, i.e., a tenant who moved in after the conversion process, then the tenant does not obtain any special TORCA protection from an owner-occupancy eviction and only has rent control protection. What this means is that you may serve the tenant with a sixty-day notice, the relocation assistance and proceed to comply with the other rent control regulations in order to owner-occupy a unit.

This sounds simple enough, but it is highly technical and we have recently lost two cases that might have turned out otherwise.

In the first case, the property owner strongly believed in the American system and further believed that she had an absolute right for her son to owner-occupy the TORCA unit that she purchased. The Judge apparently did not feel the same way and decided to deny her the right to owner-occupy the unit because she “rolled her eyes during the trial.” What this means is the Judge determined, despite the unopposed testimony that she desired her son to live in the unit and that she owned the unit, that the Judge did not believe her. Of course, the property owner reasonably was taken aback when confronted with testimony from the tenant that she had put a “hex on them.”

Another case was decided against the property owner when the property owner testified that the address that he set forth in the sixty-day notice of termination of tenancy as his residence address was really his father’s residence address but that is where he received his mail. The Judge threw the case out because the notice contained “an error.”

While we do not agree with the court’s final judgment in these two cases, there is a lesson to be learned, which is to be very careful as some courts construe these cases any way they want in order to prevent the eviction of the tenant, even if it comes down to “rolling your eyes.” There is a rent control regulation that prohibits the refiling of a new action by that same owner for four years if the owner loses. We will have a Court of Appeal hearing in the very near future to determine the legality of this regulation and I will keep you updated.