Tenants stop eviction from M-1-zoned building

Owner tries to evict tenants based on zoning while seeking to convert building to residential use. Amy Kreiling and Roy Williams leased a studio unit from Thames Realty, owner of a loft building located within a manufacturing zoning district in Williamsburg, Brooklyn. Although the lease limited their use to business purposes, the tenants used the unit as their residence. Five years into the tenancy, Thames notified them that it wished to terminate the lease. When they refused to move, Thames began a court proceeding to remove them, claiming that Kreiling and Williams were illegally using the unit as a residence in violation of the building’s manufacturing zoning.

In response, Kreiling and Williams claimed that Thames presented the loft as a residential unit, the managing agent knew they intended to reside in the loft, the building included laundry and other residential amenities, and at least 14 other tenants resided in the building. The tenants submitted evidence to show that Thames wanted tenants out of the building and was curtailing services it once provided. In addition, the Department of Buildings had previously issued a temporary residential certificate of occupancy to Thames, and Thames had sought approval from the state to convert the building into residential condos.

Justice Ira B. Harkavy allowed several of the tenants’ counterclaims to move forward, rejecting Thames’ request to evict the tenants. The court ruled that the rent protection laws might apply if the building’s zoning were found to generally permit residential use. The court found that residential use may be permitted given that Thames had obtained a zoning variance, a temporary residential C of O, and intended to convert the building to a residential condominium. Justice Harkavy rejected Thames’ concerns about maintaining the integrity of the manufacturing zoning designation since it was Thames and not the tenants who had converted many of the building’s units to residential use. Justice Harkavy concluded that at the very least there were questions as to whether the building’s M1-1 zoning designation allowed residential use, whether the residential tenancy could be legalized, and whether the tenants would be protected from Thames’ actions under the rent protection laws. Harkavy also preserved the tenants’ counterclaims regarding Thames’ failure to register the building as a multiple dwelling and rightful possession of the loft.

47 Thames Realty, LLC v. Kreiling, 16 Misc. 3d 1105A (Kings Cty.Sup.Ct. July 16, 2007) (Harkavy, J.).

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