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

Postby backhoe » Mon Aug 24, 2020 11:12 am

The article says

"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."

Does anyone know the basis for this statement? The court rulings, etc.? I wonder if it might be wishful thinking or spin by a tenant lawyer, or the reporter not understanding the situation. If true, COVID would knock out pretty much ANY nonprimary residency claim this year. I hope it's true but has the smell of "too good to be true."
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Re: 6 Month requirement for living in my NYC Apt? Sick Mom.

Postby TenantNet » Mon Aug 24, 2020 1:25 pm

Because there probably are court cases on this. No, I can't cite one without doing deeper research. But I have seen cases over the years where the courts allow some flexibility towards the tenant. How much flexibility, well that depends on any number of factors.
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Re: 6 Month requirement for living in my NYC Apt? Sick Mom.

Postby backhoe » Mon Aug 24, 2020 1:41 pm

Interesting. Look at this. Dated May 2020. https://www.nyrealestatelawblog.com/man ... qs-part-3/

"Luckily, judges have broad discretion in such cases. And given the public health emergency triggered by COVID-19, we see courts excusing absences, particularly by those who are suffering from “high-risk” factors. To compel such tenants to remain in their units and to risk possible exposure would appear to run contrary to common sense and established public health and policy considerations. While no case has yet addressed this discrete issue, we believe it is extremely unlikely that a COVID-19 related absence would count against a tenant. (With that noted, until there is definitive guidance, there is always a possibility, albeit remote, that a judge may strictly adhere to the existing standards and order that an absent tenant be evicted.)"


(by the way, Tenant.net, I'm having trouble using the "full editor" on this site. Not a biggie, but thought I'd mention it.)
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Re: 6 Month requirement for living in my NYC Apt? Sick Mom.

Postby TenantNet » Mon Aug 24, 2020 2:06 pm

I noticed some problems with the full editor as well, but a reload of the page usually fixes it. Not sure what is causing it. You can just use the editor on the Quick Reply page. Also, make sure your browser is the latest version.

The quotation above is from Newman Ferrara, a well-known landlord law firm. Yes, judges have discretion in things like this. But they - and others - are correct that many factors play into any decision. That is why it is so important to maintain (and appear to maintain) the apartment as his/her primary residence. There are many tips in this and other threads of things a tenant can/should do to show the place is still his/her residence.
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Re: 6 Month requirement for living in my NYC Apt? Sick Mom.

Postby backhoe » Mon Aug 24, 2020 2:24 pm

Indeed, one cannot assume anything until there is a published decision, or unless the legislature passes a law. (Good idea to write one's state legislator.) Hold on to every receipt, etc etc etc. In this day and age it's not hard, as very few people pay in cash for anything.
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Re: 6 Month requirement for living in my NYC Apt? Sick Mom.

Postby GuyofNYC » Fri Sep 18, 2020 11:03 am

I am only coming back to NYC if there is a proven vaccine. With high blood pressure I have an existential risk if I contract Covid. I am willing to risk not being able to get a renewal on my lease. If the landlord wants to evict me for non-primary residence laws during these times he will be met in court. In addition I am taking care of my mom with Alzheimers out of state after pulling her out of an assisted living facility for her own protection. If by a slim chance the landlord decides to boot me (I pay my rent diligently even though Im not there), the court will have to find that its not OK to care for an ailing family member, and that its not OK for a tenant for a tenant of 25 years to stay away from the city until after this deadly virus has a vaccine. There has to be some humanity shown in this difficult time. Besides that, the housing court isn't going to be up to speed for a long time, and they will have many thousands of bigger fish to fry.
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Re: 6 Month requirement for living in my NYC Apt? Sick Mom.

Postby Landlords Boy » Fri Sep 18, 2020 11:24 am

"this is not about payment of rent. This is about a non-prime residency matter."

Pretty sure the Covid issue means the courts will be very lenient about primary occupancy of a RS apt., especially if you don't try to sublease it. My guess is that the taxman will be a bigger issue than your landlord: NY is even going after out-of-state healthcare workers who volunteer in NY for a share of their out-of-state earnings.
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Re: 6 Month requirement for living in my NYC Apt? Sick Mom.

Postby backhoe » Fri Sep 18, 2020 11:35 am

Even before COVID there were far fewer primary residency cases because of the change in the rent law. I agree that this will reduce them even further. BTW--- a word to the wise. Find your original lease. If it contains an attorney's fee clause, as most do, YOU will get (or stand a good chance of getting) attorney fees if the case goes to trial and is decided in your favor.
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Re: 6 Month requirement for living in my NYC Apt? Sick Mom.

Postby TenantNet » Fri Sep 18, 2020 11:35 am

On a different forum, there were two posts by tenant attorneys (who know a good bit more about this than we do):

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.


and

Courts have consistently found that a tenant maintains an apartment as a primary residence despite a lengthy absence where the tenant’s absence is temporary, which includes health reasons, for example, to care for an elderly parent or to seek medical treatment (can include absences for work also). And, now, we will be able to include, to protect themselves from a pandemic. The tenant cannot establish a primary residence elsewhere. Thus, the tenant will need to be able to demonstrate an actual intent to return to the apartment. They should leave some or all of their furniture and personal property in the apartment and continue to declare the apartment as their domicile for tax purposes, driver’s license and voting. Perhaps better to access bank and credit card statements remotely than to change an address on documents, but I’ve told clients that it’s fine to have mailed forwarded during this time.


The second quote has an important view, that the tenant who has been away demonstrates his/her intent to return. This could be crucial from a judicial viewpoint.
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Re: 6 Month requirement for living in my NYC Apt? Sick Mom.

Postby TenantNet » Fri Sep 18, 2020 11:39 am

Backhoe, as with almost all situations, we strongly suggests that tenants avoid trial. Things happen in trials that you just cannot control. Better to dispose of a case, if possible, through motion practice. Don't go to trial for a simple reason of expecting to get attorney fees. It's very likely you won't get a dime. Don't be greedy.
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Re: 6 Month requirement for living in my NYC Apt? Sick Mom.

Postby GuyofNYC » Fri Sep 18, 2020 11:50 am

Excellent viewpoints all!
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