Primary Residence

Frequently, the landlord of a rent-stabilized or rent-controlled apartment will start a lawsuit in housing court, claiming that the tenant does not live in her apartment as her "primary residence." The purpose of the primary residence requirement is to insure that the protections of the rent laws cover only the people who need their apartments as their home, rather than as a vacation home or a secondary residence. Thus, tenants can get evicted for nonprimary residence -- that is, failing to receive mail, sleep, and live in their rent-stabilized and rent- controlled apartments.

Landlords seeking to profit from a climbing housing market, however, often abuse this primary residence rule. While some landlords are "buying out" their tenants for 30 to 80 thousand dollars, others are spending that much on legal fees in frivolous nonprimary residence holdover proceedings, falsely claiming that their tenants don’t live in their apartments.

How strong is a landlord’s nonprimary residence case? First of all, documents count for a lot. According to the newly-revised RSC § 2526.6, a court will look favorably on a tenant whose apartment address appears on his/her

• tax return
• motor vehicle registration
• driver's license
• voter registration.

Other, less strong, evidence, could be address information on any other government forms, bills, magazines, personal letters, and testimony from neighbors.

There is no specific rule regarding how much evidence is required to win the day. In fact, tenants often get into trouble when they look for bright line rules. For example, tenants often hear that they will lose their apartments if they sleep there for less than 183 days per year. While time away from the apartment is an important factor, the courts generally do not evict tenants who are out of their apartments for a 7-month hospital stay, or are away on business. (Military service and college attendance are almost always never counted. See RSC Section 2523.5(b)(2).)