• Does your rent stabilized apartment have to be your primary residence?
• What constitutes "primary residence"?
• What kind of notice should I receive if the landlord wants to evict me for non-primary residence?

Disclaimer: By providing answers to frequently asked questions, the staff of the Rent Guidelines Board attempts to clarify the often complex programs and regulations governing landlord tenant relations in NYC. However, the information provided herein does not represent official policies or opinions of the City of New York or the Rent Guidelines Board nor should this information be used to substitute for advice of legal counsel.

Does your rent stabilized apartment have to be your primary residence?

To be entitled to rent protection, a rent stabilized apartment has to be your primary residence. The Rent Stabilization Code section 2520.11(k) excludes from protection "housing accommodations which are not occupied by the tenant, not including subtenants or occupants, as his or her primary residence as determined by a court of competent jurisdiction."

You can own property elsewhere as long as you can prove that the apartment is your primary residence.

For further information, you can contact the Division of Housing and Community Renewal at (718) 739-6400.

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What constitutes "primary residence"?

Section §2520.6(u) of the RENT STABILIZATION CODE sets forth the various factors that may be considered in determining whether a tenant remains a primary resident:

Although no single factor shall be solely determinative, evidence which may be considered in determining whether a housing accommodation subject to this Code is occupied as a primary residence shall include:

1. Specification by an occupant of an address other than such housing accommodation as a place of residence on any tax return, motor vehicle registration, driver's license or other document filed with a public agency;
2. Use by an occupant of an address other than such housing accommodation as a voting address;
3. Occupancy of the housing accommodation for an aggregate of less than 183 days in the most recent calendar year, except for temporary periods of relocation pursuant to section 2523.5(b) of this Title [covering military service, enrollment as a full time student; relocation by court order; temporary relocation due to employment; hospitalization or other reasonable grounds];
4. Subletting the housing accommodation.

If your landlord is challenging your status, it is important that you to collect this evidence. Bear in mind that there are many unique situations where the above guidelines may prove less helpful. For example, an actor, stewardess, artist or musician may spend many months away from home as part of their occupation and yet have no other primary residence. The courts will consider these situations and may discount one or another of the factors (such as the 183 day occupancy guideline). In some instances tenants will maintain a seasonal residence and register their car at that location for insurance purposes, yet still be considered primary residents of their New York apartments. All these things will weigh in the decision-making process.

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What kind of notice should I receive if the landlord wants to evict me for non-primary residence?

If the landlord seeks to terminate your tenancy on non-primary residence grounds s/he is required to provide two advance notices: The landlord must give between 90 and 150 days notice prior to the expiration of your lease of his/her intention to refuse to renew your lease and 30 days notice of termination. These notices may be combined in one notice. Should you refuse to vacate, the landlord will then serve a holdover petition with a notice of petition. This latter document is usually served at least 5 and no more than 12 days before a court appearance is required. More information about "holdover proceedings" can be found here or here.

If you have any other questions we suggest you call the DHCR at (718) 739-6400.

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Disclaimer: By providing answers to frequently asked questions, the staff of the Rent Guidelines Board attempts to clarify the often complex programs and regulations governing landlord tenant relations in NYC. However, the information provided herein does not represent official policies or opinions of the City of New York or the Rent Guidelines Board nor should this information be used to substitute for advice of legal counsel.

RGB Page Updated 8/10/2012