How Courts Decide Who’s a Nonprimary Resident
Many tenants take advantage of rent control and rent stabilization laws to use their apartments as a low-cost second home. They actually live elsewhere, but keep their New York City apartments for business or pleasure. As an owner, you don’t have to stand by as these tenants unfairly reap the benefits of rent control or rent stabilization. You can take action because unless a tenant uses his New York City apartment as his primary residence, he’s not entitled to either rent control or rent stabilization protections.
If you suspect that a tenant isn’t using his rent-regulated apartment as his primary residence, you can challenge the tenant in court. With a rent-controlled tenant, you can go to court immediately. With a rent-stabilized tenant, you can refuse to renew his lease. Then, when the lease does end, you can take him to court.
However, the law controlling primary residence challenges isn’t always cut-and-dried. There’s a lot of room for judges to make individual interpretations. And there’s no one set of criteria for who is or isn’t a primary resident. Courts will look at a number of factors in making their decisions. And most challenges will be decided on a case-by-case basis.
Four Important Criteria
Despite this lack of hard-and-fast rules, there are four important criteria that courts often use to decide whether a tenant does or doesn’t use his apartment as his primary residence:
1. Income tax filings. If the tenant didn’t file New York City or New York State income tax returns for the most recent year preceding the challenge, the court will probably rule that he isn’t using his apartment as his primary residence.
2. Length of time in apartment. Courts will look at the amount of time the tenant lives in the apartment. If he lives in the apartment less than 183 days a year, chances are good that the tenant isn’t using his apartment as his primary residence. Of course, the tenant may have a good reason for not using the apartment all the time--his job or an illness, for example, could keep him away. Even so, courts say that a tenant must still show an “ongoing, substantial, physical” connection with the apartment for “actual living purposes” in order to be considered a primary resident.
3. Address listed on important documents. To see where a tenant really lives, courts will look at the tenant’s driver’s license, automobile registration, voter registration, bank statements, credit cards, and insurance forms to see what address he’s given to the division of motor vehicles, voter registrars, banks, and creditors.
4. Alternate residences. Courts will also look at deeds and leases for additional residences as some evidence that the tenant may not be using his apartment as a primary residence.
CASES THAT OWNERS WON
Here are some of the latest cases in which the court ruled that the tenant was not a primary resident.
Tenant Has Second Home
Proof that the tenant has a second home, along with other evidence showing that the tenant really lives in the second home, can often be enough to persuade the court that the tenant isn’t a primary resident.
For example, one owner won his primary residence case because the tenant owned a house in Barbados. There was undisputed proof that the tenant wasn’t present in the apartment at all during the two-year term of her last renewal lease. The tenant instead was in Barbados, where she owned a house and car, and maintained a driver’s license. Evidence presented at trial showed that the tenant’s absence wasn’t temporary or excusable but that the tenant had abandoned the apartment as her primary residence. The tenant left for Barbados in July 2009, one day after a prior nonprimary residence proceeding was resolved, and never returned or visited the apartment until March 2012, after the new case was started against her. During her absence, all the tenant’s New York bills were paid by automatic payments; she didn’t file federal or New York State tax returns for 2009, 2010, and 2011; she listed the Barbados house on sworn documents as her residence; and she maintained utility and bank accounts in Barbados. She also was treated by doctors and dentists in Barbados. The court ruled the tenant clearly didn’t have an ongoing, substantial, physical nexus with the apartment for actual living purposes [951 LLC v. Carasco, November 2016].
In another case, an owner showed that the tenant listed another address on his driver’s license, car registration, and mortgage documents. The tenant also hadn’t occupied the apartment for actual living purposes for a year before the owner started the eviction proceeding. According to the court, the tenant’s testimony about where he was living since 2013 wasn’t credible. The tenant had substantial means and owned three homes in Queens. The tenant claimed that the owner hadn’t made repairs to the apartment and therefore he couldn’t live there, but he presented no proof that he had notified the owner or requested repairs. The tenant himself was a landlord and complained for the first time about apartment conditions only after the owner started the eviction proceeding. The electric use at the apartment was low since at least 2010, and the tenant listed a Queens address on his driver’s license since 2004. The tenant also acknowledged that he still wasn’t living in the apartment [Fros Property LLC v. Lam, February 2016].
In another case, an owner sued to evict a rent-controlled tenant for nonprimary residence and claimed that the tenant primarily resided in South Carolina. The trial court ruled for the owner. The tenant appealed and lost. The owner presented proof that, over a three-and-a-half-year period, the tenant wasn’t using the apartment as her primary residence. The tenant had purchased property in South Carolina; her bank statements showed that she had been living in Charleston most of the time; her initial 2008 New York State tax return didn’t list New York as her place of residence; her car insurance and registration were in South Carolina; her 2007 and 2008 tax returns were prepared in South Carolina; and she sent rent to the owner in envelopes postmarked from South Carolina for a number of months. The trial court properly found that the tenant wasn’t using the Brooklyn apartment in an ongoing and substantial manner consistent with physically living at the apartment [Johnson v. Smith, October 2016].
Tenant Moved in with Someone Else
If you can show that the tenant has moved out of the apartment and lives with someone else (such as a lover or family member), you should be able to evict the tenant. For example, an owner showed that a tenant had moved to another apartment in the city with her boyfriend. Police records showed that the tenant had obtained an order of protection to exclude the boyfriend from the other apartment. The tenant also had sublet her apartment to someone else while living in the other apartment. The tenant was a real estate professional and, while she maintained a paper trail to the apartment, she repeatedly lied and contradicted herself at trial. The court reasonably found that the tenant didn’t maintain a substantial, physical connection to the apartment for actual living purposes between 2004 and 2006 [Norfolk Development LLC v. Kee, May 2015].
In another case, a court found that the tenant lived elsewhere with her husband. The tenant was a self-employed artist who had succeeded to the apartment as a family member of the prior rent-stabilized tenant. The owner claimed that the tenant was married and lived with her husband at the husband’s rent-stabilized loft.
The court ruled for the owner after a trial. The owner’s managing agent testified that he was frequently at the building but rarely saw the tenant. The tenant had discontinued a landline telephone and cable TV at the apartment in 2008. The tenant’s cell phone was billed to her husband’s address under a family plan that she shared with her husband. Con Ed records for the apartment showed minimal usage since 2008, consistent with the use of a refrigerator or a single light bulb left running. The building super, who lived next door to the building, testified that he saw the tenant at the building about twice per month.
The court didn’t believe tenant’s claim that she and her husband lived primarily at the apartment. In pretrial questioning, the tenant stated that her husband was her boyfriend and that she stayed at his place two to four nights per week. But the “boyfriend” was actually the tenant’s husband, which the tenant claimed she lied about because it was a secret she kept from her family. While the tenant kept a carefully maintained paper trail tying her to the apartment, it was uncontested that she and her husband had joined their lives together and stayed together every night. The tenant failed to call a single witness to support her claim that she primarily resided in the apartment. Her claim that she and her husband stayed together most nights at the apartment wasn’t credible [Beacon 109 245-251 LLC v. Van Dyke, February 2015].
Tenant Classifies Apartment Rent as Business Expense
In some instances, a tenant may deduct rent as a business expense on income tax returns. A court could interpret this as the tenant not using a primary residence for actual living purposes and, as a result, the tenant who deducted rent as a business expense can’t claim primary residence.
For example, when one owner sued to evict a rent-stabilized tenant for nonprimary residence, the court ruled against the owner after a trial, finding that the tenant lived in the subject apartment and not at his wife’s apartment elsewhere in the city. Although there was conflicting documentary evidence, the court gave credit to testimony that the tenant had a “nontraditional” relationship with his wife.
The owner appealed and won. The tenant deducted 100 percent of the rent for the subject apartment as a business expense for his company on federal tax returns filed during the two-year period before the owner brought the eviction proceeding. IRS instructions allow a deduction only for a portion of a home used “exclusively” as a place of business. Tenant’s position that the subject apartment was his primary residence is contrary to the declarations made under penalties of perjury on his income tax returns that the apartment was used exclusively for business purposes [Goldman v. Davis, September 2015].
In another case, a tenant deducted rent as a S corporation expense. When the owner sued to evict the rent-stabilized tenant for nonprimary residence, the owner asked the court to rule in its favor without a trial, based on documentary evidence. The court ruled against the owner, who appealed and won. On her federal income tax returns for the years 2009, 2010, and 2011, the tenant deducted the entire rent for the apartment as an expense of her S corporation. The instructions for filing returns for S corporations disallow the deduction of rent “for a dwelling unit occupied by any shareholder for personal use.” The tenant’s position that the apartment was her primary residence therefore was contrary to declarations made under penalty of perjury on income tax returns that she didn’t occupy the apartment for personal use. It didn’t matter that Rent Stabilization Code Section 2520.6(u) stated that “no single factor” was solely determinative in a primary residence case. Tenant’s claim was logically incompatible with the position she asserted on her tax returns [Ansonia Associates Limited Partnership v. Unwin, July 2015].
Tenant Lives Outside of New York State
Just because a tenant has an out-of-state home doesn’t mean the court will rule against him. But this fact, combined with other evidence showing that the tenant really lives out of state, can be persuasive evidence that the tenant isn’t a primary resident. Here are some cases where tenants with out-of-state homes or apartments were found to be nonprimary residents.
In one case, a tenant was admittedly in Hawaii for 14 months during the two-year period before the owner terminated her tenancy. The tenant also filed a Chapter 7 bankruptcy petition in Hawaii during that period. She claimed in her bankruptcy petition that she had lived in Hawaii for 180 days immediately preceding that filing and that she had moved to Hawaii within the two years immediately before the bankruptcy filing. She also stated in her bankruptcy papers that she had vacated the New York apartment in March 2005 and then moved to Hawaii. The tenant also didn’t list her unexpired rent-stabilized lease under Schedule G (executory contracts and unexpired leases) or Schedule C (property claimed as exempt) of her bankruptcy petition. The Bankruptcy Court issued an order of discharge for the tenant in February 2006. The fact that tenant’s furniture and possessions remained in the New York apartment where her son lived didn’t change the court’s finding of nonprimary residence [1568-1572 Third Avenue, LLC v. Beachley, February 2016].
In another case where an owner sued to evict a rent-stabilized tenant based on nonprimary residence, the trial court ruled for the owner, and the tenant appealed and lost. The tenant rented the apartment in 1975 and prior to his marriage in 1993, he bought a house in Connecticut. The court found that the tenant primarily resided in Connecticut with his wife and family, where he was registered to vote. He taught classes at Brooklyn College two or three days per week and generally went to Connecticut on Fridays, returning on Tuesday or Wednesday. The tenant’s work duties were divided among teaching (25%), research (60%), and committee work (15%). The tenant did all of his research work in Connecticut. He testified that he spent 120 to 160 days per year at the apartment, didn’t have a driver’s license, but did his banking in Brooklyn and all of his healthcare providers were in Brooklyn [Kalikow Family Partnership, LP v. Seidemann, July 2015].
In another case, a tenant spent substantial time working in Argentina. The owner sued to evict the rent-stabilized tenant for nonprimary residence. The court ruled for the owner after a trial. The tenant appealed and lost. The tenant was absent from the apartment for nine months during 2009, eight months during 2010, and the first six months of 2011. During that time the tenant lived in Argentina and permitted others to occupy the apartment. The tenant was working as a musician during his lengthy stays in Buenos Aires [184-188 Claremont Investors, LLC v. Nelson, March 2015].
Tenants Use Apartment for Storage
An owner sued to evict rent-stabilized tenants based on nonprimary residence. The trial court ruled against the owner, who appealed and won. Video surveillance showed that the tenants rarely entered the apartment. Video footage showed that one tenant entered the apartment for a total of 39 hours in a two-year period; the other tenant entered the apartment on 10 different days during the same two years. Neither tenant ever slept in the apartment. The owner also showed that the apartment was used by the tenants essentially for storage and convenience; there was little use of electricity in the apartment; tenants primarily resided in a second apartment that they rented in the same building; and the apartment had boxes piled up to six feet high with a narrow pathway through the pile, blocking the kitchen, bathroom, and window area [135 W. 13, LLC v. Stollerman, May 2016].
Tenant Virtually Abandons Apartment
An owner sued to evict a rent-stabilized tenant for nonprimary residence. The trial court ruled for the owner. The tenant appealed and lost. Among other things, the owner presented compelling photographs that showed that the tenant kept the apartment in a state of disarray, with a refrigerator, bathtub, and sink in a state of disuse and debris throughout. There also was no bed in the apartment, and electrical use during the two-year period before the tenant’s last renewal lease expired was virtually nil [West 88th Street LLC v. Henriquez, December 2014].
CASES THAT TENANTS WON
Here are some of the latest cases in which courts ruled that the tenant was a primary resident—that is, the owner couldn’t prove the tenant didn’t use his apartment as his primary residence.
Tenant Cares for Family Member
If the tenant is temporarily absent from the apartment because he must care for a family member or deal with some other family issues, you’ll have a harder time proving he’s not a primary resident.
For example, in one case where an owner sued to evict a rent-stabilized tenant for nonprimary residence, the court ruled against the owner after a trial. Although the tenant was away from the apartment for more than 183 days per year during the relevant period, his absence was temporary and excusable because he was providing end-of-life care for his elderly mother in upstate New York and remained there to deal with some family issues. The owner appealed and lost, then appealed to a higher appeals court. The appeals court ruled against the owner and noted that the tenant returned to the apartment periodically, didn’t remove his personal belongings, never sublet the apartment, paid New York City self-employment taxes, and listed the apartment as his address on federal, state, and city tax returns as well as other documents filed with public agencies [Second 82nd Corp. v. Veiders, January 2017].
In another case, this one involving a tenant who took care of family in Westchester, the court ruled that the tenant maintained primary residence in Manhattan. The apartment was listed on various important documents, including the tenant’s driver’s license, voter registrations, W-2 forms, and bank and credit card statements. Although the tenant had bank and credit card activity in Westchester County, she testified credibly that she traveled to Westchester to care for her elderly mother and disabled brother, but returned to the Manhattan apartment most nights [BRG 321 LLC v. Hirschorn, June 2016].
In another case, in which an owner sued to evict a rent-stabilized tenant from a studio apartment based on nonprimary residence, the owner claimed that the tenant had abandoned the apartment and lived primarily in Yonkers with her mother. The court ruled against the owner after a trial. The owner and its witnesses testified that the tenant was rarely seen at the apartment between 2010 and 2012, and pointed out that the tenant failed to produce credit card receipts showing business with local merchants. Nearly all of the tenant’s bank and credit card transactions took place in White Plains, Scarsdale, and Yonkers. At the time of trial, the tenant also hadn’t submitted income tax returns for the years 2009 through 2013. The tenant was in the process of getting divorced and her husband, also a tenant, didn’t appear in the case.
The tenant testified that she had lived in the apartment for 20 years, that her father died in in Yonkers in 2000, and that she then assisted her mother with her disabled brother’s care. She also spent more time caring for her elderly mother in recent years and traveled as a self-employed advertising producer. She claimed that she drove back and forth to Yonkers regularly, often returning to the city late at night and leaving early the next day. The court found that the owner didn’t rebut tenant’s claim that she came home to the apartment most nights and that her family activity in Yonkers was her “day job” [BRG 321 LLC v. Hirschorn, June 2015].
Tenant Spent Time at Girlfriend’s Apartment
Here, when the owner sued to evict a rent-controlled tenant for nonprimary residence, the trial court ruled against the owner, who appealed and lost. The owner didn’t present many of the documents typically relied on to establish nonprimary residence. There were also conflicts in the owner’s claims. The notice of termination claimed that the tenant voted from and maintained utilities, banking records, credit card accounts, and insurance at an alternate address, but presented no proof of these records at trial. According to the court, the fact that the 82-year-old tenant frequently visited his now former girlfriend at a nearby apartment didn’t compel a finding of nonprimary residence [Budhu v. Castro, September 2016].
Owner’s Termination/Nonrenewal Notice Was Too Vague
If you make a technical mistake and lose your case against a rent-stabilized tenant, you must give the tenant another lease. You can’t try for the eviction again until that lease ends. You’re most likely to run into trouble when sending the tenant a nonrenewal notice. This notice tells the tenant that you’re not renewing his lease and why. But if you don’t send the notice at exactly the right time, or don’t include the required information, a court will throw out your case.
For example, in one case where an owner sued to evict a rent-stabilized tenant for nonprimary residence, the tenant asked the court to dismiss the case, claiming that the owner’s lease nonrenewal notice was too vague to support the owner’s claim. The court ruled for the tenant and dismissed the case. Allegations regarding the tenant’s absence from the apartment weren’t specific to any time frame; there were no allegations connecting the tenant’s absence with the presence of another apartment occupant; no specifics were provided with respect to claimed Internet advertisements to sublet the apartment; advertising for sublet didn’t mean that the apartment had been sublet; and the tenant’s alleged subletting of the apartment was only one factor that might indicate that she wasn’t using the apartment as her primary residence [PR 307 West 93, LLC v. Constantin, March 2016].
In another case where an owner sued to evict a rent-controlled tenant for nonprimary residence, the owner asked the court for permission to conduct pre-trial questioning. The tenant asked the court to dismiss the case, claiming that the owner’s termination notice was defective. The court ruled for the tenant. The owner’s termination notice stated the New Jersey address where the owner claimed that tenant lived. But the notice otherwise was too vague. It stated that the tenant didn’t occupy the apartment; the tenant hadn’t spent 183 days in the past year residing in the apartment; building personnel hadn’t seen the tenant at the building; and the tenant allowed his brother to live in the apartment. The notice didn’t inform the tenant in a meaningful way of any facts underlying the owner’s claim [325 Third Avenue LLC v. Vargas, May 2016].
Tenant Has Second Home or Apartment
Just because a tenant has a second home or apartment doesn’t mean the court will rule against him. For instance, in one case where an owner sued to evict a rent-stabilized tenant for nonprimary residence, the court ruled against the owner after a trial. The tenant lived in the one-bedroom apartment with his mother and nephew. But the tenant also rented another apartment in his name and paid the utilities there. The tenant credibly testified that he rented the second apartment for his two adult children, who moved to New York from Haiti to attend school but had no jobs. He had to put the apartment in his name to rent it for his children. He also visited his children daily before and after work. The owner presented no other documents linking the tenant to the second apartment, while the tenant provided records showing that he used the owner’s apartment as his residence [200 E 19th St. Realty LLC v. Simeon, January 2015].
In another case, the owner claimed that the tenant had moved to Brooklyn in 2009 and no longer maintained the Manhattan apartment as his primary residence. The trial court ruled against the owner, finding that the owner failed to prove that the tenant listed another voting address, spent fewer than 183 days in the apartment in the most recent calendar year, or ever sublet the apartment. The tenant showed, through credible testimony by himself and other family members, that he had lived in the apartment since 1994, and that he bought the Brooklyn two-family house in 2003, where his wife and children moved to when he and the wife divorced. The tenant and his daughter also showed that while some of the tenant’s records were mailed to the Brooklyn address, this was due to the tenant’s limited ability to understand English and because his daughter handled his finances and affairs [BDS Associates, LLC v. Lin, January 2016].
Tenant Temporarily Absent from Apartment Due to Medical Condition
An owner sued to evict a rent-stabilized tenant for nonprimary residence, claiming that the tenant lived in a Los Angeles hotel for at least a year, hadn’t voted in New York City since 1984, didn’t have telephone service in his name at the apartment, and hadn’t been seen at the building for months.
After trial, the court ruled for the tenant and dismissed the case. In 2010, the tenant had been voluntarily admitted to a psychiatric hospital on three occasions. When discharged, the tenant flew to Los Angeles and stayed at the hotel for a year to “recover,” even though his doctors had recommended that he enter assisted living. The tenant testified that staying at the hotel helped him to transition back to living independently at the apartment, and he had resumed living there.
In 2013, the tenant took 10 short trips to the hotel but otherwise lived at the apartment. He was 68 years old and had lived in the apartment for 30 years, hadn’t filed tax returns in recent years, had no driver’s license, and hadn’t registered to vote for 40 years. He had no cell phone, computer, email address, cable TV, or Internet service. He did maintain a land-line telephone at the apartment with long-distance service. Gas and electric were included in the tenant’s rent. The tenant’s bank and brokerage accounts were all sent to the apartment, the tenant had never sublet the apartment or had a roommate, and the apartment was fully furnished and decorated with the tenant’s belongings. The court found that the tenant’s absence from the apartment was temporary and excusable based on his medical condition [56 7th Avenue, LLC v. Sobel, November 2014].