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

Posted by TenantNet on February 21, 1997 at 03:56:58:

In Reply to: 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.


I don't know if I can cover every facet of your message in a brief email reply.
The reality is that the landlord will try anything at his disposal to get you
out and they will take you to court no matter what you say or think. There
are several issues to look at:

a) primary residency
There are indeed cases which when a tenant is not in occupancy for more than
180 days in a given year they can claim the unit is no longer your primary
residence. It's a complicated issue and the courts are supposed to look at
the totality of the situation, including your intent to return. Many people
look at where you pay taxes, where you vote, the nature of your absence, etc.
I remember a case a while back where a NY actor lost her apartment when she
went to LA for extended periods for pilot season [I don't remember the details
so I stand to be corrected on that one]. For rent stab tenants, the owner can
only evict on non-primary residency at the end of the lease, not in the middle,
but the notice of intent to not renew the lease based on non-primary residency
grounds must be served between 120-150 days prior to the expiration of the lease.
However, in some cases the can bring a declaratory action in Supreme Court.
These cases can get quite complicated and you really need a good lawyer.

b) succession rights. We have the succession regs on TenantNet and also,
these can get complicated. But you're really not talking about succession,
but non-traditional family status. If you claim that, you have the burden to
prove it through a variety of means, including financial intermingling of
funds, emotional commitment, etc.

c) subletting, thats section 226-b of the Real Property Law and it is
tru that owner's can charge an additional guideline period increase -- if
you are subletting. As much as it may appear to be extortion, you should
judge that cost against extensive litigation. If you are subletting, then
that's a presumption that you have an intent to return, so the primary
residency issue should go away.

d) RPL 235-f (Roommate Law) allows you to have an additional occupant
IN ADDITION to you and your family. So you can immediately see that a
claim of family status obviates the roommate issue (if it holds).
If the occupant pays rent, there is no sublet as long as the tenant
maintains the unit as the primary residence, and the law requires the
roomate to contemporaneously occupy the unit with the tenant. Your
situation is complicated as you have an extended trip.

From your standpoint, your girlfriend live with you as more or less
a family member. That fact alone, if upheld on a challenge or offered
as a defense would trip up the other three issues. Do your homework
on establishing a non-traditional family status. If the owner takes
you to court, he will decide the grounds on which to claim your
eviction, so you need to have a plan B on each of these grounds.
You may wish to get legal counsel to walk you through all the steps.
BTW, you could get married, too.

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