Nonprimary residence holdover proceedings should be about as straightforward as you get in the world of rent stabilization law. If tenants are using a stabilized apartment as their primary home, they are entitled to continue occupying it. Conversely, if tenants are living elsewhere and either warehousing the apartment or subletting it in violation of §2525.6 of the Rent Stabilization Code, then they lose that right.
The only problem is that there’s some ambiguity surrounding the definition of “primary.” For example, tenants are allowed to own another property, such as a vacation home, without violating the section of the Code (§ 2520.6(u)) that defines primary residence. They are also allowed to own second and third homes so long as one of these homes does not become their primary residence.
Unfortunately, there is not a single criterion that proves primary residence. As stated in § 2520.6(u), “No single factor shall be solely determinative.” There are really three ways to show nonprimary residence.
The first is if you can present official documents proving that a tenant has listed another address as a primary residence. A phone bill isn’t going to cut it. This needs to be an official government document. Section § 2520.6(u)(1) lists the following examples: tax returns, driver’s licenses, motor vehicle registrations, or other documents filed with a public agency. Section 2520.6(u)(2) makes mention of voting address. Be warned, though. You will want several instances in which tenants listed a different address as their primary address or, better yet, changed their primary address to a different address while still claiming to live in the subject apartment. It will be extremely hard for a tenant to say they've maintained a primary residence in Brooklyn since 2008 if they tenant changed their voting address to Florida and got a Florida driver’s license in 2014.
The second is to prove that they spend more than half of the year living at a different address. Per RSC 2520.6(u)(3), tenants can lose their right to their stabilized apartment if they occupy the apartment “for an aggregate of less than 183 days in the most recent calendar year,” though there are exceptions to this rule as defined in RSC 2523.5(b)(2), which states that temporary relocation is allowed if the tenant:
- is engaged in active military duty;
- is enrolled as a full-time student;
- is not in residence at the housing accommodation pursuant to a court order not involving any term or provision of the lease, and not involving any grounds specified in the Real Property Actions and Proceedings Law;
- is engaged in employment requiring temporary relocation from the housing accommodation;
- is hospitalized for medical treatment;
- has such other reasonable grounds that shall be determined by the DHCR upon application by the such person.
The third is to prove that they were illegally subletting the unit, which is an issue our Legal Expert, Michelle Maratto Itkowitz, has discussed at length.
This installment of the Case of the Week features an instance in which all three may have been in play simultaneously.
The relevant facts are as follows: The tenant, Wade Quashie, began renting the stabilized unit located at 930 Prospect Place in Brooklyn on or before October 1, 2009. On June 6, 2013, the petitioner/landlord purchased the building. The landlord, upon belief that the unit was not the tenant’s primary residence, refused to renew the tenant’s lease. On May 31, 2014, the lease expired.
After commencing an action in Housing Court, the landlord presented evidence showing that the tenant listed an address that is the same as his wife’s East Flatbush address on his 2001 marriage certificate and on his 2011 state-issued driver’s license. This is the same address that he registered to vote under in 2016.
The tenant was incapable of defending himself with documentary evidence. He submitted no income statements, bank records, credit card statements, tax returns, or even utility bills to prove that the Prospect apartment was his primary address. His only defense came in the form of testimony in which he claimed that he had moved into the apartment with his daughter because she and his wife did not get along. He could not recall the year in which he began renting the apartment, nor could he say how often he stayed there, as he was “back and forth” between the subject premises and his wife’s home. He also regularly worked out-of-state as a self-employed carpenter. In other words, he could not prove that he stayed there at least 183 days per year. Consequently, his daughter, who was not on the lease, was effectively subletting the unit, and had been for more than two years.
Because the defendant could not provide any credible evidence in his defense, the court granted the landlord judgement of possession by an order dated June 4, 2018.
What to take away: Very few cases are going to go this well for a landlord. However, if you can present a wealth of evidence because you’ve done your research and documented everything, then your chances of winning in court will be extremely high—especially if your tenant is unprepared or disorganized.
The read more about this case, see what our friends at Landlord v. Tenant have to say.