Non-primary Residency

Non-primary residency cases are brought against tenants living in rent-regulated NYC apartments by landlords who claim that the tenant of record does not live at their apartment as their primary residence.  Having New York area legal assistance, such as the Law Offices of Attorney Eric Feinberg, is beneficial in these cases.

The case initially starts when a tenant’s landlord sends them a notice that the landlord is not going to renew the tenant’s lease based upon the belief that the tenant is not using the apartment as their primary residence. In legalese, the landlord is claiming that they do not have an ongoing, substantial, physical nexus with the property for actual living purposes. In a majority of these cases the underlying motive, as in most cases brought against tenants, is the landlord’s desire to gain possession of the apartment with the goal of charging a substantially higher market rent to the new tenant.

Under New York City landlord-tenant law, rent-regulated tenants must maintain the apartment as his or her primary residence. In an eviction action, it is the landlord’s burden to prove that the tenant is not using his or her apartment as their primary residence. In making a determination whether the tenant is living at his or her apartment as their primary residence, the court will consider witness testimony and documentary proof in reaching a decision. Such proof may include evidence demonstrating where the tenant might live.  New York vehicle registration, tax records, voting records, bank and credit card records, utility bills, mail receipts, and phone bills all can be used to show where the tenant primarily resides.  If the New York City court believes that the tenant has lived at his or her apartment for more than 183 days in the preceding calendar year, then the tenant will be able to defeat the landlord’s proceeding to evict.

Sometimes a tenant does have an acceptable excuse as to why they did not live at their apartment for a period of time. For instance, sometimes a tenant does not live in his or her apartment because they were away at school, serving in the military or because a job forced them to temporarily relocate. Sometimes a tenant moves in with an ill family member. In each of these instances the New York court may excuse the tenant for not having lived at their apartment for a period of time.

These cases are very fact-intensive and the New York court has a fair amount of discretion to determine in close cases whether the tenant should be able to stay in the apartment. It is extremely important for tenants to gather all relevant documentation and have witness testimony available to defend against them.

If you are a New York City tenant subject to a non-primary residence holdover case, you should call the Law Offices of Attorney Eric Feinberg to protect your rights.