Please note: DHCR no longer distributes this Fact Sheet and
portions may be out-of-date.  Contact DHCR for up-to-date
information.  For best viewing and printing, format this
document in a monospaced font, i.e., Courier.
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DHCR FACT SHEET
Division of Housing and Community Renewal

HOW TO ESTABLISH PRIMARY RESIDENCE BY A TENANT

NOTE: This Fact Sheet should only be used as a guide since it
informs the reader of the **general** criteria used to
determine whether or not a housing accommodation is a tenant's
primary residence. It also contains **general** suggestions as
to how a tenant may establish primary residency. As such, the
Fact Sheet is only informational, and not conclusive. It does
not contain every rule applicable to primary residence, and
should not be solely relied upon by a tenant. A tenant whose
primary residence is challenged is advised to consult with an
attorney.

In New York City, if an owner believes that a tenant is not
using his or her rent stabilized apartment as a primary
residence, the owner may begin an action in Civil Court to
have the tenant evicted from the apartment at the termination
of the tenant's lease, on the basis of nonprimary residency.
No such action or proceeding may be commenced unless the owner
gives thirty days' notice to the tenant of his or her
intention to take such action. Also, the owner of a rent
controlled apartment may go to court to begin an action for
eviction on the basis of non-primary residence after giving
the tenant thirty days' notice of such intention. Outside of
New York City, DHCR must determine non-primary residence cases
for rent controlled tenants, but such cases are adjudicated by
the courts for rent stabilized tenants.

In New York City, in order for an apartment to be found to be
a tenant's primary residence, a tenant must either be living
in the subject apartment or, if not living there all of the
time, have spent at least 183 days of the preceding calendar
year in the apartment. A tenant may be required to submit
proof in court that he or she filed a New York City Resident
Income Tax Return specifying the address of the subject
apartment as his or her residence for the most recent taxable
year for which such return should be filed.

The requirement for a tenant to spend at least 183 days of the
preceding calendar year in the apartment may be excused on the
grounds that the tenant was in active service in the Armed
Forces of the United States, or that the tenant initially took
occupancy during the preceding calendar year. In addition, a
tenant may also furnish proof that there was no legal
obligation to file a New York City Resident Income Tax Return
because he or she was residing in a foreign country, was
employed by a foreign government or by an international
organization, or that the tenant's income for that year was
below the amount required for the filing of a return or for
any other ground permitted by the Department of Taxation and
Finance.

If an owner commences an action to evict a tenant on the
ground that he or she does not occupy the apartment as his or
her primary residence, the tenant may raise as a defense that
he or she specifies the address of the subject apartment in
one or more of the following documents:

(1)  city, state, or federal income tax returns;
(2)  driver's license;
(3)  motor vehicle registration;
(4)  voter registration;
(5)  any other document filed with a **public** agency.

The tenant may also show the court that he or she has neither
sublet the apartment nor assigned the lease.

The courts and DHCR have broad discretion in such proceedings.
Usually, they will consider the address specified by the
tenant as his or her place of residence on the above
documents. But, they will also take into consideration whether
or not the tenant has sublet the apartment or assigned the
lease.

Tenants should be advised that there is no requirement in any
statute or in the Code or Regulations which require a tenant
to submit any proof of primary residence to a owner prior to
trial. At that time, the owner has the burden of proving that
you are not a primary resident. You do not have to provide any
documentary proof of primary residence unless directed to do
so by a judge or when you testify at trial. Any persistent
request by a owner for such documents as a copy of your New
York City or New York State Resident Income Tax Return may
constitute harassment. Furthermore, if a owner commences a
court proceeding for which he or she has no legal basis,
he/she may also be guilty of harassment as well.

(Jan. '86)

Mario M. Cuomo, Governor
William B. Eimicke, Commissioner
Manuel Mirabal, Deputy Commissioner

Rent Hotline  718-739-6400

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DHCR Fact Sheets (series of thirty) are issued by the New York
State Division of Housing and Community Renewal (DHCR) as plain-
english informational publications.  For official agency
policies, see DHCR Policy Statements, Advisory Opinions and
Operational Bulletins. Also refer to the Rent Stabilization Code,
the Rent Stabilization Law and various Rent Control Statutes.

Electronic versions of these documents on TenantNet are for
informational purposes only and there is no guarantee they will
be accepted by any court (or even DHCR) as true copies of DHCR
policy. The reader may obtain true copies of these documents from
DHCR.

Every attempt has been made to conform to the original Fact
Sheets as issued by DHCR; TenantNet makes no
representation the enclosed material is current or will be
applied as written.  The reader is advised that DHCR often fails
to properly apply, interpret or enforce housing laws.  Since
housing laws are complex and often contradictory, it is
recommended the reader obtain competent legal advice from a
tenant attorney or counseling from a tenant association or
community group. (rev. 3/13/96) DHCR documents
are public documents; the electronic version of such documents
have been developed by TenantNet and any added value, enhancements
and/or proprietary features are copyright 1994, 1995 and 1996 by
TenantNet. These documents may be freely distributed provided they
remain intact as herein presented, including this and the top
informational banner referencing TenantNet as the original provider.
------------------------------------------------------------

For more information or assistance, call the DHCR Rent Infoline
at (718) 739-6400, or visit your Borough Rent Office.

Queens Central Office
92-31 Union Hall St. 4th Fl.
Jamaica, NY 11433
(718) 739-6400

Bronx
One Fordham Plaza
Bronx, NY 10458
(718) 563-5678

Brooklyn
250 Schermerhorn St.
3rd Floor
Brooklyn, NY 11201
(718) 780-9246

Lower Manhattan
156 William Street
9th Floor
NY, NY 10038
(212) 240-6011, 6012
South side of 110th St. and below

Upper Manhattan
163 W. 125th St.
5th Floor
NY, NY 10027
(212) 961-8930
North side of 110th St. and above

Staten Island
350 St. Mark's Place
Room 105
Staten island, NY 10301
(718) 816-0277

Nassau County District Rent Office
50 Clinton Street, 6th Floor
Hempstead, NY 11550
(516) 481-9494

Westchester County District Rent Office
55 Church Street, 3rd Floor
White Plains, NY 10601
(914) 948-4434

Rockland County District Rent Office
94-96 North Main St.
Spring Valley, NY 10977
(914) 425-6575

Albany Regional Office
119 Washington Avenue
Albany, NY 12210
(518) 432-0596

Buffalo Regional Office
Ellicot Square Building
295 Main St., Room 438
Buffalo, NY 14203
(716) 856-1382

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