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6 Month requirement for living in my NYC Apt? Sick Mom.

NYC Rent Regulation: Rent Control/Rent Stabilized, DHCR Practice/Procedures

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6 Month requirement for living in my NYC Apt? Sick Mom.

Postby GuyofNYC » Wed Aug 05, 2020 7:30 am

Hi all;

Can I be evicted from my rent stabilized NYC apartment that I have been living in for 25 years if I am out of state for more than 6 months a year acting as primary caregiver for my mother who has Alzheimer's in Boston?

I left midtown Manhattan in March after the pandemic got insane in NYC for Boston to stay with family. In June I got my mom out of assisted living up there as she was so isolated that it was accelerating her decline from Alzheimer's. We got an apartment for her in a suburb of Boston, and I am now her primary caregiver.

Can my Manhattan landlord who owns residential buildings in NYC try to bring eviction proceedings against me if I spend my time in Boston acting as primary caregiver for mom? I will be spending more than 6 months a year in Newton taking care of her.

Thank you for any advice you can give.
Last edited by GuyofNYC on Tue Aug 11, 2020 10:03 am, edited 4 times in total.
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Re: 6 Month requirement for living in my NYC Apt? Sick Mom.

Postby TenantNet » Wed Aug 05, 2020 9:15 am

For rent stabilization, the rule is that the apartment is your primary residence. You are allowed to have secondary apartments, such as vacation cottages. The general rule is that you actually live in your RS unit a minimum of 183 days (roughly six months).

If a LL thinks you are not using the unit as your primary residence, he/she may bring a non-primary case in court that if proven, would result in your eviction. The rules to such cases can get complicated and you will find discussions on them on this forum. Look for "Golub Notice" which means certain notices must be delivered to the tenant during a certain window period before termination.

Many such cases are tossed based on a LL screwing up the Golub Notice requirement. If you are at that stage, then you really need to get a tenant attorney who has experience in non-primary cases. Most of the lawyers who advertise here should have that background.

If you anticipate a case down the road, then you need to document everything you do while here ... utility bills, voting, ATM cash withdrawals, receipts for purchases of everything. Whatever it is, get a receipt. All this would show activity here in the city. Also, don't sublet.

I do that (not because I have a second residence - I don't). I keep all receipts and scan them into the computer every month. Within minutes I can put my hands on any receipt for the last ten years. It may seem to be a lot of work, but once you get in the habit, it's not, and it can save your RS apartment. Also keep a diary of where you go and when. All of that should be admissible in court (and good for contact tracing in case you catch COVID).

As for being out-of-state as a caregiver, I have heard of cases where this has been allowed (although I can't cite any as we don't have Lexis access), and should be bolstered with evidence of your intent to return.

One tenant attorney recently wrote:

I have little doubt that if a tenant left NYC temporarily in order to protect their health or the health of a family member in the household, courts would not hold that this constitutes non-primary residence so long as they return when it becomes safe to do so, keep their paper trail (taxes, voting, bank, credit card, financial statements etc) at the apartment and don’t sublet the apartment. I have advised a half dozen clients and prospective clients accordingly. I see this as a branch of the well-established line of cases that permit tenants to temporarily relocate elsewhere in order to care for an ailing relative.


For example, if you've kept all your possessions and furniture in place, that's not the actions of a person who is intending to leave.

In your case, you allude that the place where your mother was might not have been safe or conducive. With the ongoing scandals of senior centers (at least in NY), that is a prudent and expected thing to do.

In your case, look to when your RS lease expires. That is the window period for the Golub Notice. I just Googled it and found this:
https://www.mcadamslaw.net/landlord-ten ... -holdover/

Here's another:
https://fishmanlaw.nyc/nyc-tentant-cons ... oceedings/

These are from our tenant attorney advertisers.

Also see viewtopic.php?f=1&t=5388
This article is from a landlord lawyer.

And http://tenant.net/phpBB3/viewtopic.php?f=15&t=6788
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Re: 6 Month requirement for living in my NYC Apt? Sick Mom.

Postby GuyofNYC » Wed Aug 05, 2020 9:30 am

Thank you Tenantnet, I very much appreciate your in depth answer. I also see that it would be a risk coming back to densely populated midtown Manhattan in the near future(without a vaccine available) due to my age, 52, obesity and hypertension factors.

Thank you for the advice about subletting, because I was seriously considering it to defray the cost of my rent.

If you ever find any case law about out-of-state caregivers, evictions and landlord/tenant law, I would be very keen to read up on it. My six month window is closing in on me fast, and my LL is very proactive when it comes to evictions.

Thank you again
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Re: 6 Month requirement for living in my NYC Apt? Sick Mom.

Postby TenantNet » Wed Aug 05, 2020 9:38 am

I have seen such cases ... just can't point to one right now. Lawyers usually have access to Lexis and can find them. You can also Google such cases.

52 is not that old. With appropriate protections, you should be safe. Just stay inside.
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Re: 6 Month requirement for living in my NYC Apt? Sick Mom.

Postby GuyofNYC » Wed Aug 05, 2020 9:42 am

Understood. I will do some more Google research.

About staying inside...easy to say. Its a small apartment and if you suffer from diagnosed depression like I do, it's one hell of a tall order!
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Re: 6 Month requirement for living in my NYC Apt? Sick Mom.

Postby TenantNet » Wed Aug 05, 2020 11:00 am

Consider the alternative.
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Re: 6 Month requirement for living in my NYC Apt? Sick Mom.

Postby GuyofNYC » Wed Aug 05, 2020 1:39 pm

Hopefully some case law will crystallize my predicament. Having mom move to NYC with me is a 99% improbability..
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Re: 6 Month requirement for living in my NYC Apt? Sick Mom.

Postby TenantNet » Wed Aug 05, 2020 1:53 pm

As a said, check with a tenant attorney, who probably have the cases at their fingertips.
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Re: 6 Month requirement for living in my NYC Apt? Sick Mom.

Postby GuyofNYC » Mon Aug 10, 2020 12:22 pm

i will try to do that but there are so many people with more pressing rent issues....
THANKS!
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Re: 6 Month requirement for living in my NYC Apt? Sick Mom.

Postby TenantNet » Mon Aug 10, 2020 12:37 pm

That may be so, but I know attorneys are looking for clients. If you speak with any of our advertisers, please let them know where you found their name and info.

The other reason to consult with an attorney (remember a real tenant attorney who deals with non-prime cases all the time, not some layer down the street) is so they can tell you what to do in advance of any case being filed by the LL. You want the assessment of your exposure, but you want to develop a list of things you can do to minimize that exposure. And if that means coming back to NYC one day a week and hiring someone to watch you mother for that one day, then I would consider doing that.

Landlords will often ask supers if there are any tenants who don't live in the place. So you want to be on the good side of the super. Unless there is a reason not to, consider a tip over the holidays. Being there, in person, 1-2 days a week, and VISIBLE to the super, can go a long way in the information that is being passed on the the LL. Don't tell him you're gone the other 5-6 days. Let them think you are there.

If you can make it there, then engage in commercial activity -- use the ATM, go food shopping, whatever will generate a receipt. Talk to neighbors (witnesses). If you have someone coming in the other days to water plants, feed the dog, whatever, try so the super does not see them. But have them use enough electricity to generate a bill from Con Ed that gives the impression you are there.
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Re: 6 Month requirement for living in my NYC Apt? Sick Mom.

Postby GuyofNYC » Mon Aug 10, 2020 1:27 pm

Thank you Tnet. Unfortunately everyone knows I am gone and that I left due to the insane numbers of Coronavirus cases in NYC.. The doorman knows, the superintendent who lives in the building knows. I currently cant do a regular commute to Manhattan. So the illusion of stealth is nonexistent.

Oh just found some case law stating..."The temporary relocation for the purpose of caring for ailing parents does not in itself mandate a finding of nonprimary residence (see Nussbaum Resources I, LLC v. Gilmartin, 2003 N.Y. Slip Op. 50553[U], 2003 WL 262341 [2003];  Kalimian v. Holmberg, 2001 N.Y. Slip Op. 40297[U], 2001 WL 1530165 [2001] )."  

It will be 5 months since I am gone from midtown. My mail is being forwarded to my current place in Boston. I really need to consult a lawyer to see if leaving the city due to the virus can buy me some extra months up here, plus the more important fact that I am taking care of an ill parent. Im a tenant of my building for 25 years and I moved nothing out of the apartment.

A non profit tenant landlord association told me last week that NYC housing court is only hearing the most urgent cases like unsafe conditions, abusive tenants, and none due to non payment of rent. Since I am paying my rent diligently, and the fact that almost 15 percent of renters of my building have left due to the virus, I am a bit more relaxed in my position. My lease is up in March 2022. I just renewed for two years right before the virus hit.
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Re: 6 Month requirement for living in my NYC Apt? Sick Mom.

Postby TenantNet » Mon Aug 10, 2020 2:34 pm

If they already know you are gone (which in the future you should not let them know), then your current job is to reverse that perception. You can't do a regular commute? It's one way to save your apartment if the LL comes after you, so do what you can to do that, even if inconvenient.

Your length of time as a tenant in this unit - 25 years - is not a factor; it's irrelevant.

Even if there are cases (and I know there are), that will not stop or dissuade a LL from coming after you. If it's a decent LL, then maybe they won't, but most are not decent and they often employ aggressive LL lawyers and even private detectives to get the dirt. They will come up with arguments to support their case. There may be things you can do even if you are not willing to show up in person. But the BEST thing to do right now is to get the LL to think you are indeed in occupancy.

It's true that housing court activity is limited right now, but that would not stop an aggressive LL from filing a case now, or later. If the cause of action accrues now, they can still file a proceeding later.

And this is not about payment of rent. This is about a non-prime residency matter. That has NOTHING to do with rent.

What might be material is that your lease has approx. 20 months left before expiration. The Golub Notice window is 90-150 days before the next renewal, so that gives you a year.

What I do not know (and a tenant lawyer should know) is the timeline needed to sustain a non-primary claim. When they file a notice, does the allegation of non-residency have to occur the most recent year?

I have heard that tenants are required to be in residence for 183 days per year, for each of the last two years. So if you're gone more than 183 days this year, but are back in residency the following year before the Golub Notice is served, then you might be OK. That is one aspect of all this that you should clarify with a lawyer.

But even so, you really need to do a number of things, as I detailed above, to correct the non-residency.
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Re: 6 Month requirement for living in my NYC Apt? Sick Mom.

Postby TenantNet » Mon Aug 10, 2020 2:37 pm

BTW you really should not sign your posts using your first name. Anything that resembles your real name or email address, leave out of posts. LL's watch this forum.
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Re: 6 Month requirement for living in my NYC Apt? Sick Mom.

Postby GuyofNYC » Mon Aug 10, 2020 2:50 pm

Thank you!
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Re: 6 Month requirement for living in my NYC Apt? Sick Mom.

Postby TenantNet » Sat Aug 22, 2020 11:33 pm

This article was just published in the NY Times and deals with the issue from this thread. While there some good points, the situation with the poster differs to some degree. And trusting a building staff member should not occur without serious consideration.

https://www.nytimes.com/2020/08/22/real ... tment.html
I’ve Been Away From My Apartment for Months. What Happens Now?
Courts have long held that tenants can stay away from their apartments for extended periods because of health reasons. But don’t neglect your home.
By Ronda Kaysen
Aug. 22, 2020, 5:00 a.m. ET

Q: I live in an Upper East Side apartment with a rent-stabilized lease, which requires me to live there at least 183 days a year. I have been away since the start of the pandemic. What happens if I stay away for more than half the year? And how do I maintain it in the meantime?

A: Although rent-stabilization rules require tenants to use their apartments as a primary residence, your landlord doesn’t have much incentive to enforce the rule if you’re paying your rent. Changes made to state rent laws in 2019 ended vacancy deregulation in most cases, so if your landlord were to evict you, the next tenant would probably have a rent-stabilized lease anyway.

Regardless, the courts have long held that tenants can stay away from their apartments for extended periods because of health reasons. In this case, fear of contracting a deadly virus would likely suffice.

But you still need to maintain the apartment as your residence. So don’t change your address on any of your bills, voter registration or taxes. Instead, forward the mail. Once the pandemic ends, you will need to return. “If your sole reason for being away is your health, you have to go back within a reasonable amount of time,” said Samuel J. Himmelstein, a Manhattan lawyer who represents tenants.

In the meantime, don’t neglect your apartment entirely. Ask a friend, neighbor or a member of the building staff to check in on it monthly. They should look for evidence of leaks from your apartment or a neighboring one, run the faucets and flush the toilets. “Plumbing is an issue and that’s year round and for any extended absence,” said Melissa Cafiero, director of compliance at Halstead Management.

Don’t run window or through-the-wall air-conditioning units during extended absences. They could leak, causing serious damage. Instead, keep the curtains drawn.

Someone should also check your mailbox periodically, as you may still receive fliers and brochures, which can pile up. “It’s amazing how much mail gets through” despite forwarding requests, said Sharon Fahy, an associate broker with Halstead, which is now part of Brown Harris Stevens, and the president of the board of her Upper East Side co-op. About half of the residents in her building are still away, and the board recommends that they contact the resident manager and leave a contact number in case of emergency. Remember to tip any staff member who regularly checks your apartment for you.
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