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does a 6-month biz trip = vacating the premises?

Posted by Andrew Sollinger on February 21, 1997 at 02:43:05:

I'm a NYC-based journalist on assignment in Hong Kong for six months, and
the landlord of my rent-stabilized building discovered that that I'm out
of town and is trying to bust me for illegally subletting to my girlfriend,
who for work reasons had to remain behind in our NY apt. She is not on the
lease, which I just renewed for two years in Jan., but
has been my registered roommate for three years. They claim that since she
is not on the lease--and I am not present--her tenancy is illegal. I am
still paying the rent from HK and will return in August.

They discovered I was out of town when my girlfriend tendered a rent check
from her own account, which they subsequently returned. They insisted that
the check come from me, and that's how the argument started. I express mailed
a check from HK and offered to pay directly from HK, but that won't satisfy

They claim that my girlfriend is recognized as an additional occupant
pursuant to Sec. 235-f of the Real Property Law, "defined briefly as a person
occupying a premises as their primary residence with the consent of the
named tenant, however, having no rights of tenancy i.e. the right to
tender rent or execute leases. Such additional occupancy is additionally
restricted to the named tenant's continuous personal presence at the
premises notwithstanding occassional short vacations or long week-ends
away, etc. In the prolonged absence of the named tenant, the roommate
then takes on the status of an illegal subtenant unless the named tenant
receives the landlord's advance written consent to a lawful sublet of the
premises." As a result, they want my girlfriend and I to enter into a
subtenancy agreement, during the term of which they will be able to raise
the rent by 9%. Can they do this?

Sec. 235-f 6 says that the occupant (my girlfriend) has no tenancy rights
if the tenant (me) vacates the premises. But have I vacated the premises?
I've gone on a six month business trip to HK, which is how my contract with
my company reads. All my clothes and furniture are still in the NYC
apartment. I'm still paying US & NY taxes, maintaining US bank accounts,
etc. Also, it seems that if my girlfriend were my spouse this would not
be an issue. Although she is not my spouse, we can make a pretty good
argument that we're as good as married having dated for four years and
lived together for three. Does this carry any weight?

The NY State Rent Stabilization Code doesn't really touch on the matter
directly. However, under the Definitions in Sec. 2520.6, she
easily qualifies as a family member (i.e. we can prove
financial and emotional commitment). Sec. 2523.5 b(1) lays out certain
lease renewal rights for such family members who have occupied the
premises as their primary residence for at least two years. I know we're
not talking about a lease renewal here, but does this mean that my girlfriend
has any other rights?

Should I fight this or what?

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