Nonprimary Residence

What are known as "nonprimary residence" cases are brought against tenants living in rent-regulated apartments by landlords who claim that they do not have an ongoing, substantial, physical nexus with the property for actual living purposes. Notably, the landlord often is seeking to gain possession of the apartment with the goal of charging a higher market rent to a new tenant.

Under New York City landlord-tenant law, a rent-stabilized tenant must maintain the apartment as his or her primary residence. In an eviction action, it is the landlord's burden to prove by a fair preponderance of the evidence that it is not used as a primary residence. The court will consider witness testimony and documentary proof in reaching a decision. This may include: drivers' licenses, vehicle registration, documents filed with public agencies, tax records, voting records, bank and credit card records, utility bills, mail receipts, and phone bills. Another important factor is if the tenant resided in the unit for 183 or more days during the most recent calendar year.

There is no limit to the type of proof that can be introduced, so long as it tends to prove or disprove that the apartment is being used as a primary residence.

Tenants, even though they spend little time in a regulated apartment, may have a credible, excusable reason which will prevent an eviction. This could include, among other things, illness, occupational demands, and factors pertaining to personal relationships.

These cases are very fact-intensive and the 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 nonprimary residence holdover case, you may contact New York City tenant lawyer Eric Dinnocenzo at (212) 933-1675 for a free consultation.