How to Pursue Claim When Tenant Moves to Nursing Home

Suppose you find out that an elderly tenant has moved to a nursing home or senior citizens' facility. But the tenant has not given up his rent-regulated apartment in your building. Perhaps the tenant—or his family—doesn't want to face up to the fact that he'll never be able to return to his apartment.

In such a situation, if you can prove to a court that it's unlikely that the tenant will ever return to the apartment—for example, he's too ill to take care of himself and not likely to recover—you may be able to evict the tenant from his rent-controlled or rent-stabilized apartment because it's no longer his primary residence.

However, it is not easy to show that a tenant isn't likely to ever return to the apartment. It may be hard to get the information you need about the tenant's physical and mental state. Another consideration is that suing to evict a tenant can be costly. And judges are often reluctant to order an eviction.

If you suspect that a tenant is not coming back after having moved to a nursing home and the effort to evict is worth it, you may want to pursue a nonprimary residence claim. The following are some suggestions on how to tell if a tenant has really moved out for good. We will also look at some court decisions to understand what courts look for when deciding if you can evict a tenant who has moved to a nursing home or senior facility.

Gather Initial Information

Before seeking the tenant's eviction in court, try to find out what's actually going on with him or her. While you may not be able to use this initial information as evidence in court, it gives you some basis for deciding if you have a chance to win your case. Once you sue to evict the tenant, you can use various legal mechanisms (such as depositions and subpoenas) to get proof you can use in court.

Look for pattern of deterioration. In many cases, there are signs beforehand that an elderly tenant is having trouble caring for himself. The level of care the tenant needs increases as his condition deteriorates. You or your staff may first notice frequent visits by the tenant's relatives. This may be followed by part-time in-home nursing care. Then, the tenant may require full-time in-home nursing care. As a last resort, the tenant will move to a nursing home or senior facility. If this chain of events occurs with a tenant in your building, there's a good chance that the tenant has moved out for good.

Ask tenant's family for information. You can try to contact an immediate family member of the tenant to ask about the tenant's situation. To locate a family member, consult the tenant's lease application. It may list names and telephone numbers of the tenant's family members as emergency contacts. Also take a look at the tenant's rent checks. A family member may now be sending you the rent. Bank checks often show addresses and telephone numbers as well as names.

The family member may explain that the tenant's stay in a nursing home will only be temporary. But in some cases the family member may admit that the tenant has moved to the nursing home or other facility permanently.

Get information from nursing home. Once the tenant is in the nursing home or other facility, you may be able to get information from doctors or staff there about the tenant's condition and probability of leaving. Try calling or writing the nursing home. State that you own the building where the tenant had been living. Explain that you're concerned about the status of the tenant's apartment and need to know if the tenant will be moving back. Again, the staff may not be willing to give you much information.

What Courts Consider

The fact that a tenant has entered a nursing home does not mean that he permanently resides there. In one case, an owner sued to evict a rent-stabilized tenant for illegally subletting to her son. The owner claimed that the tenant no longer lived in the apartment and was confined to a nursing home. The owner asked the court to rule in his favor without a trial. However, the court ruled against the owner.

The court stated that the tenant's admission to a geriatric center, even for a substantial period of time, wasn't for life and didn't automatically mean that the tenant gave up her primary residence at the apartment [Metroka v. Andrews, July 2006].

When deciding if a tenant is unlikely to come back to an apartment from a nursing home or senior facility, courts look at the tenant's complete physical and mental state. In many past cases, courts have taken these factors into account:

• The nature and seriousness of the tenant's illness;

• The length of the tenant's stay in the nursing home or senior facility so far;

• Where the tenant's furniture and personal possessions are currently located. If they're no longer in the apartment, a court is more likely to rule that the tenant has abandoned the apartment as a primary residence;

• Where the tenant filed his tax returns for the previous year; and

• Testimony and sworn statements of the tenant's doctor as to the tenant's physical state and projected date of return to the apartment.

After giving these factors varying weight, the court will decide if the tenant is still using the apartment as a primary residence. Here are examples of how some cases were decided.

Tenant too ill to return. A court found that a tenant was too ill to ever return to her rent-controlled apartment. The tenant had lived in a nursing home for four years. She suffered from Parkinson's disease and was severely incapacitated. Her need for total nursing care wasn't expected to change, and there was no one who could provide in-home nursing care for her. Considering the tenant's advanced age and her total inability to take care of herself, the court found that the apartment was no longer her primary residence [RSP Realty Assoc. v. Katz, December 1990].

If you're claiming that a tenant is too ill to return to an apartment, be prepared to prove this with testimony or sworn statements from the tenant's doctor(s) or nursing home staff.

Combination of factors show tenant not returning. In one case, the tenant was 93. A trial court initially ruled in her favor, and the owner appealed. The appeals court reversed and ruled for the owner. The tenant's medical report stated that she suffered from senile dementia, and her affairs were managed by her accountant. Given the tenant's advanced age and condition, her absence from the apartment for over four years, and her placement in a full-care nursing facility, the apartment couldn't be considered her primary residence any longer. According to the court, the rent control law was designed to protect those actually living in the apartments [Manor Place Associates v. Neville, August 1995].

Furniture left in apartment indicates primary residence. An 82-year-old tenant had been absent from her apartment for about five years because of medical problems. When the owner's case to evict her came before the court, she was in a Florida nursing home recovering from brain surgery, a stroke, and a broken hip. The court ruled that the tenant could not be evicted. Here, the tenant's intentions swayed the judge. She'd filed New York State and New York City resident income tax returns. And she told her doctor that she wanted to return to the apartment. But the key was that she had kept her furniture in the apartment while she was gone. For that reason, the judge ruled there was “no clear-cut abandonment of one primary residence to establish another…” [Heller v. Joy, February 1984].

Temporary move not enough. If it looks like the tenant may be in the nursing home only temporarily, there's less chance of an eviction. For example, in one case, a tenant had been in a nursing home for two-and-a-half years after falling. The tenant's daughter and grandchildren had been staying in the apartment since the tenant went into the nursing home. The court found no illegal sublet under these circumstances and ruled against the owner and declared that the apartment was still the tenant's primary residence. The court was swayed by the fact that the tenant was only 72, her possessions were still in the apartment, she had been in the nursing home for less than three years, and had a good prospect of returning to the apartment in the near future [Schultz v. Gomez, November 1995].

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