Win Nonprimary Residence Cases with Proper Evidence, Latest Court Decisions

Because of the limited supply of rent-stabilized and rent-controlled apartments, state law requires rent-regulated tenants to use them as a primary residence. Oftentimes, tenants will try to hold onto rent-stabilized or rent-controlled apartments they no longer live in. These tenants may be trying to hold onto the apartments for occasional residences or as places for friends to stay. Fortunately, you can evict tenants who don't use their apartment as their primary residence.

You have a big incentive to be vigilant and to pursue nonprimary residence cases: If the evicted tenant was rent stabilized, you can collect a vacancy increase when you sign a lease with a new rent-stabilized tenant. And if the evicted tenant was rent controlled, you can charge the new rent-stabilized tenant a first rent.

In this special issue, we will provide you with an overview of the types of evidence that you will need for a successful nonprimary residence proceeding. We will also describe five situations in which owners are commonly allowed to evict nonprimary residents and explain the latest court decisions that pertain to them.

Suspicion Insufficient, Proof Required

Any nonrenewal notice served on a tenant to recover an apartment on the ground of nonprimary residence must include the facts that support your claim. In other words, if you merely suspect that a tenant does not live in his apartment anymore, you can't bring a nonprimary residence eviction proceeding. You must explain why you came to the conclusion that the tenant is not a primary resident in the notice. For example, if you know that the tenant is living at another address, state the place where you believe the tenant is living. Or if your building staff has not seen the tenant in the building for a very long time, you should state this in the notice.

Ultimately, an owner seeking eviction with the primary residence rule must show the court that the tenant doesn't maintain enough ties to the New York City apartment as his residence. In legal terms, the tenant doesn't maintain an “ongoing substantial physical” connection with the apartment for “actual living purposes.” Courts will decide on a case-by-case basis if an owner has proved that a tenant lacks these ties. Judges presiding over these cases will look at the address listed on various records belonging to the tenant, such as the tenant's driver's license, car registration, voter registrations, credit card records, bank statements, utility bills, and tax returns.

It is important to note that it is not necessary for an owner to have other addresses for an absent tenant to have sufficient proof to pursue a claim. In a recent case, the owner presented proof at trial that building employees didn't see the tenant for extended periods of time, electricity usage in the apartment was minimal, and materials such as take-out menus and telephone books piled up outside tenant's apartment door. The court ruled on appeal that this was enough for the landlord to satisfy its initial burden of showing nonprimary residence. The trial court should have examined the tenant's credibility and the merits of her defenses instead of simply dismissing the case because the landlord didn't know of an alternate address for the tenant. The absence of the alternate address didn't bar the landlord's claim [Oakridge Center, LLC v. Anthopoulis, November 2008].

Many owners will hire private investigators to gather facts for them after suspicions are raised. Investigators will have access to databases that may turn up alternate addresses for the tenant. However, cost-conscious owners who would like to do more investigating on their own to decide if pursuing an eviction or hiring an investigator is worthwhile can do some preliminary research on their own.

Motor vehicle records. Owners can request driving and vehicle registration records, and a photocopy of the tenant's driver license application from the state's Department of Motor Vehicles (DMV) by filling out a form called “Request for Driver and/or Vehicle Record Information” (Form MV-15). You can get this form online at http://www.nysdmv.com.

If you think the tenant lives outside of New York State, you can get motor vehicle license and registration records from other states. If the tenant has a car registered in another state, this would be evidence that the tenant does not primarily reside in your building.

Voting records. The New York City Board of Elections can provide a printout of registered voters for any building in the city. You can use this list to preliminarily check if a suspected nonprimary resident tenant is listed. You need to provide the clerk at the Board of Elections borough office with the Assembly District and the Election District where the building is located.

Property records. You can search property records online to find out if the tenant owns property such as a house or condominium in another part of New York City. If so, you may want to investigate further as to whether the person actually lives at this other property.

With the “Automated City Register Information System,” you can search property records by party name and view document images for Manhattan, Queens, Bronx, and Brooklyn back to 1966. You can access the system at the Department of Finance Web site http://www.nyc.gov/dof.

Discovery Process, Detailed Evidence Gathering

After you begin a nonprimary residence eviction proceeding, you and your lawyer can get the court's permission to engage in “discovery” proceedings to gather more detailed evidence. During this stage, you can demand copies of the tenant's tax returns, monthly bills, and other documents that may establish a different primary residence for the tenant. You can even require the tenant to answer written questions under oath.

Attorney Peter Schwartz of Graubard Miller gives one example where detailed documentary evidence was used to unmask a tenant's false claims. The tenant and her husband had testified that they have separate primary residences. The husband lives outside of New York City, while the tenant claimed that her New York apartment has been her home for over 11 years [Devonshire Assocs., LLC. v. Cas, December 2008].

The documentary evidence showed that the couple owned a house outside of New York City; she voted at the other city; her paycheck, W-2s, and individual tax returns listed the other address as her residence; she did not pay New York City taxes; and her credit card, AT&T long distance, and health insurance statements listed the other address.

In response, the tenant testified that she traveled to the other city primarily to work for her husband as a bookkeeper; she would travel to the other city on a Thursday or Friday and return to her apartment on a Tuesday; and she traveled almost exclusively by US Airways. However, during the course of the trial, records of the tenant's US Airways flights were introduced that revealed that in two consecutive years the tenant spent significantly more than 183 days outside of New York City. Spending less than 183 days of the year at an apartment is an indication to the courts that a tenant does not primarily reside there [9 NYCRR §2520.6(u)].

Situation #1: Tenant Lives in Claimed Vacation Home

Tenants who own a second home or apartment often claim that they use it only for vacations or at certain times of the year. But owners have beaten this claim by showing, through documents and other evidence, that the tenant actually lives in the second home, and not at the rent-controlled or rent-stabilized apartment. For instance:

An owner was able to show that a tenant primarily resided in Portugal. The tenant had been retired since 1994, and admittedly spent a significant amount of time each year in Portugal. There he owned a three-bedroom house that he had built in the late 1970s. The tenant also maintained utility accounts for the house. In 1981, the tenant's wife and then young children relocated to Portugal, worked, and attended school there. The tenant's daughters returned to the United States as adults to attend college and stayed at the apartment, while the tenant remained in Portugal with his wife. One daughter paid the utility bills for the apartment with the tenant's pre-signed checks.

The trial court ruled for the landlord. The tenant appealed and lost. Considering the entire history of the tenancy, and the evidence concerning the tenant's limited connection to the 310 square-foot walk-up apartment, the landlord proved that the tenant didn't use the apartment as his primary residence [Santorini Equities v. Picarra, April 2008].

Sometimes a tenant might make a “snowbird defense,” claiming that he leaves New York for warmer climates only during the winter months. In these cases, you won't be able to win your nonprimary residence case if the tenant is able to show that even though he owns a second home, he doesn't live there. In a recent case, a court ruled that a tenant claiming a Florida Homestead Exemption on tax documents, by itself, without evidence of her Florida address on various other documents such as a driver's license, vehicle registration, and voter registration, would bar the tenant from claiming her New York apartment as a primary residence.

In this case, the tenant admitted that she owned two residences in Florida. But the tenant stated in pretrial questioning that her Manhattan apartment was her primary residence and that she stayed in Florida only during the winter months. The tenant listed a West Palm Beach property as her address when she applied for and obtained a Florida homestead tax exemption. The owner argued that, therefore, legally, the tenant should be barred from claiming New York as her primary residence.

The court ruled against the owner. The tenant's declaration of residence on a tax-related document is just one of many factors to be considered in determining her primary residence. Here, the court stated that the tenant's declaration of residence for a homestead exemption was different from, say, immigration status that was imposed by law and that might bar a foreign tenant from claiming a primary residence in New York [111 Realty Co. v. Sulkowska, October 2008].

Situation #2: Tenant Uses Apartment for Storage, Mail Drop

If you can show that a tenant uses the apartment solely for storage, you should be able to evict the tenant for being a nonprimary resident. An owner can show that the tenant does not use his apartment as a dwelling with pictures and building staff testimony. A tenant who doesn't actually live in a rent-stabilized apartment can't hold onto an apartment indefinitely.

In a somewhat extreme example, an owner sued to evict a mentally ill rent-stabilized tenant for nonprimary residence. This tenant spent virtually all of his time living on the streets within a 20-block area near the apartment. The tenant used the apartment to store his personal belongings and for a mailing address. The court found that the tenant didn't use the apartment as his primary residence because he didn't maintain a sufficient connection for living purposes. The tenant's mental illness didn't excuse his absence.

The rent stabilization law doesn't require the landlord to prove that the tenant had another primary residence. The landlord needed to show only that the apartment in question wasn't the tenant's primary residence. The landlord proved that in this case. Also, the fact that the building was in disrepair and had to be vacated for repairs in 2007 didn't change the fact that the tenant stayed away from the apartment because of his mental illness, not because of building conditions [TOA Construction Co., Inc. v. Tsitsires, July 2008].

Situation #3: Tenant Caring for Sick Relative

A tenant may be temporarily absent from the apartment to care for a sick relative. Most judges will tend to be sympathetic to a tenant in this situation.

For example, in one case, a court ruled that the tenant proved that she relocated temporarily to California to care for her ailing, elderly parents. The tenant was a registered nurse and gave care to her parents from spring 2001 through December 2002. She never rented or owned any property in California, but lived in makeshift quarters at her sister's house and later at a friend's house. Also, she didn't live with her parents because they had a small apartment in a senior citizen complex.

Although the tenant also worked in California during this time, the court ruled that this was understandable because she had to financially support herself and her 15-year-old daughter. The daughter remained alone in the New York apartment and attended high school throughout the time the tenant was in California. The tenant returned every few months and stayed for a few weeks every time she did. She also continued to maintain utility accounts at the apartment, kept her furnishings there, and maintained bank accounts listing the apartment.

It was also understandable that the tenant would need a California driver's license during her temporary stay in California. The tenant didn't vote or file tax returns in California. She filed returns listing the New York apartment as her residence for two of the three years provided. Evaluating the entire history of the tenancy, the court ruled that the tenant had proved that she kept an ongoing, substantial, physical nexus with the New York apartment for actual living purposes [542 East 14th Street LLC v. Lee, January 2008].

In another case, an owner sued to evict an elderly, rent-stabilized tenant for nonprimary residence. The owner claimed that the tenant didn't live in the apartment between the summer of 2003 through the end of 2004. The tenant admitted at the trial that she relocated temporarily to Greece to care for her ailing mother. The trial court ruled for the landlord, but the tenant appealed and won. The tenant showed that she maintained an ongoing physical connection to the apartment. She went to Greece to fulfill a family obligation. But she returned periodically for brief visits, and kept her furniture and personal belongings in the New York apartment. She also received mail at the apartment, including Social Security checks and financial statements [Hudsoncliff Building v. Houpouridou, December 2008].

Situation #4: Tenant with Foreign Tourist Visa, Travel Documents

By law, a tenant with a foreign visa is unable to satisfy the primary residence requirements for rent-regulated tenants. This was upheld in a recent case. The owner showed that the tenant was a British national who lived in New York while holding a B2 tourist visa.

The owner argued that, as a matter of law, the tenant couldn't maintain a primary residence at her New York apartment. Initially, the trial court ruled against the owner, holding that a trial was needed to determine the facts. However, the owner appealed and won. The tenant then appealed to New York's highest court and lost.

The New York Court of Appeals ruled that in the absence of unusual facts, federal law barred the tenant from claiming that the New York apartment was her primary residence. To have a valid B2 tourist visa, a person must have a “principal, actual dwelling place” outside the United States that she “has no intention of abandoning.” Claiming one's primary residence is in New York while holding a B2 visa is inconsistent, unless the tenant showed that her principal dwelling place for immigration purposes was in one place, while her primary residence for rent regulation purposes was at the apartment. In this case, the tenant failed to do so [Katz Park Avenue Corp. v. Jagger, October 2008].

More locally, you can use other types of travel documents to show that a tenant does not primarily reside in an apartment. If you think a tenant is driving from his actual primary residence to work in New York City and using E-Z Pass, you can try getting E-Z Pass records to help prove your case. In one case, a court ruled that the Triboro Bridge & Tunnel Authority had to comply with an owner's subpoena for E-Z Pass records in a nonprimary residence case. The owner subpoenaed E-Z Pass records to help prove that the tenant primarily resided in Easthampton, N.Y. The court ruled that the state legislature didn't exclude relevant E-Z Pass records from production in court cases and the authority must make the records available to the owner [Marcus v. Mandel, March 2002].

However, these records can also be used to show that another residence was a weekend home. In a recent case, an owner claimed that the tenant lived primarily in New Jersey. The tenant claimed that the New Jersey house was just a weekend home. Eventually, the court ruled against the owner after a trial and dismissed the case. The landlord appealed and lost. The tenant presented documentation at the trial showing her substantial physical connection to the New York City apartment. She explained why she had registered her car in New Jersey. And E-Z Pass records the landlord presented at trial supported the tenant's explanation of how the car was used [ST Owner LP v. Ward, November 2008].

Another method to check a tenant's traveling or commuting habits may be through her MetroCard. If you're suing to evict a tenant for nonprimary residence and the tenant travels by subway or bus from her actual residence to work, you may be able to use the tenant's MetroCard records to help you win your case. In one case, an owner successfully used the tenant's MetroCard records to help prove that the tenant didn't use her rent-stabilized Manhattan apartment as her primary residence, but instead lived in Brooklyn [51 Spring St. Assocs., LLC v. Yuen, October 2002].

The tenant and her husband owned a house in Brooklyn, and their daughter went to school in Brooklyn. The tenant claimed that she lived in the Manhattan apartment most of the time because of marital problems. However, the tenant showed no proof of marital problems. The tenant's tax, mortgage, and banking records placed her at the Brooklyn house. Con Ed usage for the Manhattan apartment was very low. Also, her MetroCard records showed that on most days, the tenant commuted from and to Brooklyn on the subway, using a monthly MetroCard.

Each MetroCard is uniquely identified by a serial number on the flip side. Each time a subway rider swipes the card, the turnstile reads the bevy of information stored on the card's magnetic stripe, such as serial number, value, and expiration date. That data is then relayed back to the Metropolitan Transportation Authority's (MTA) central computers, which also record the passenger's station and entry time. From the MTA's perspective this allows for free transfers between buses and subways.

Your attorney can find out if the tenant uses a MetroCard during a pre-trial legal procedure known as a “deposition.” If the tenant does use one, a copy of it can be made and your attorney can send a legal document—called a subpoena—to the MTA along with a copy of the card showing its serial number. The subpoena will request a printout of the MTA's records showing where and when the card was used.

Practically speaking, a monthly MetroCard showing the tenant's bus or subway use is stronger proof of nonprimary residence than a refillable card that a tenant may use over a shorter amount of time. A longer time period can more accurately establish a tenant's routine.

Situation #5: Tenant Illegally Sublet Apartment

If you have proof that a tenant has been illegally subletting the apartment over a number of years, you may be able to convince the court that the tenant is a nonprimary resident. In one case, an owner was trying to deal with an illegal sublet, but the court ruled against the owner and stated that the proper remedy for the owner was to file a nonprimary residence proceeding when the tenant's current renewal lease expires.

In this case, the owner sued to evict rent-stabilized tenant for unauthorized subletting or assignment of his apartment to his brother-in-law. The brother-in-law asked the court to dismiss the case without a trial. He claimed that he had lived in the apartment for 20 years. The court ruled for the brother-in-law since the owner can't file an illegal sublet proceeding against a tenant's immediate family member who has a longstanding connection to the apartment, even if the tenant no longer lives there. However, there might be ample grounds for a nonprimary residence proceeding.

If you find that the tenant is illegally subletting the apartment and does not hold the apartment as a primary residence, the owner should be careful to abide by all legal notice requirements.

In one case, an owner claimed that the tenant was illegally subletting and that the apartment wasn't the tenant's primary residence. The District Rent Administrator ruled for the tenant and ordered the owner to renew the tenant's lease. The owner appealed, again stating that the tenant had breached his lease by illegally subletting. The DHCR ruled against the owner. If the owner claimed nonprimary residence, it should have sent the tenant a nonrenewal notice during the window period at least 90 days before his last lease expired. The owner failed to do so, and the tenant therefore was entitled to a renewal lease [Marmion Avenue Associates, September 2008].

Even if a sublet is legal, meaning that the tenant got your okay to sublet, you may still be able to evict the tenant for being a nonprimary resident. In one case, the tenant claimed that she had legally sublet her apartment for two years with the owner's consent. The tenant argued that owner shouldn't be allowed to proceed with the nonprimary residence eviction proceeding. The court ruled against the tenant. The fact that the tenant was subletting the apartment didn't bar the owner from refusing to renew her lease, because it believed that the apartment wasn't the tenant's primary residence.

While the sublet may ultimately provide an explanation for why the tenant wasn't in the apartment for 183 days of the preceding year, there were other questions the owner raised. The tenant was employed in California and didn't use the New York address as her primary residence on her latest tax returns. So the owner was entitled to proceed with the case [Corliss Estates, Inc. v. Yulin, April 1996]. To help determine whether a rent-stabilized tenant wishing to sublet intends to return to the unit and occupy it as a primary residence at the end of the sublease term, see sidebar below, Questions to Ask Rent-Stabilized Tenants Wishing to Sublet.

When to Evict

If you decide to try to evict a tenant who you believe is a nonprimary resident, your timing depends on whether the apartment is rent stabilized or rent controlled:

With a rent-stabilized apartment, you have ground to refuse to renew the tenant's lease and evict the tenant at the end of the lease term. The owner must notify the tenant in writing that a lease renewal offer will not be made, and a termination notice must be served at least 90 and not more than 150 days prior to the expiration of the lease. The two notices can be combined. And an exact copy of the termination notice, along with proof of service, must be filed with the DHCR within seven days of the day you serve the termination notice on the tenant.

With a rent-controlled apartment, you can seek an eviction whenever you want. In this case, you must serve the tenant with a 30-day notice of termination. You must file an exact copy of the notice of termination, along with an affidavit of service, with the DHCR within 48 hours of service of the notice on the tenant.

Sidebar

Questions to Ask Rent-Stabilized Tenants Wishing to Sublet

An owner can reject a rent-stabilized tenant's sublet request if the owner has a good reason to believe that the tenant does not use the apartment as a primary residence, or that the tenant does not plan to use the apartment at the end of the lease term. When a rent-stabilized tenant requests permission to sublet, you may request additional information before making a decision. The questions below can help you decide. Remember that your decision needs to be made within 30 days after a tenant requests permission to sublet, or submits additional information that you've requested below. Not responding within 30 days constitutes consent to the sublet.

• Are there any other dwellings you own or lease? If so, provide the addresses and names of the occupants.
• Does the subtenant have the option to renew the sublease for an additional term?
• Where do you intend to live at the end of the sublease?
• Who will own or rent the primary dwelling address that you will occupy during the sublet period?
• Will you remove all or most of your furnishings from the apartment before the sublease begins?
• Why are you requesting a sublet, in detail? (employment, vacation, etc.)
• Have you sublet the apartment before during the last four years? If so, what are the dates that the subletting occurred, the rent charged, and the name of the subtenant?