Primary Residence in a Time of Quarantine11/10/2020 | By: Michelle P. Quinn, Esq.| GDB 2020 Fall Newsletter
Greater New York has been on lockdown since March 20, 2020. Restaurants, stores, and other retail establishments were closed entirely for the better part of the summer. Non-essential workers are beginning to return to their jobs, though only a portion are taking public transportation, eating out, or shopping locally. Those continuing to stay home have even less contact with the outside world.
Tenant’s Primary ResidenceIn light of these home-bound habits, landlords and tenants alike face difficulty in verifying a tenant’s primary residence. Thousands of New York City apartments are subject to the residency requirements of Rent Regulation or the Mitchell-Lama housing program, both of which include the obligation that a tenant maintains the regulated apartment as their primary residence. While there is no “bright-line” definition of primary residence in rent regulation, the general understanding is that it requires that the tenant actually occupy or maintain a physical nexus with the apartment for at least 183 days each year.
Typical proof consists of a tenant’s voter registration, driver’s license, and, significantly, New York State tax returns and the address each reflects. In this digital age, it is no longer enough simply to show the mailing address as most transactions are performed “paperlessly” online. Far more telling are the locations of transactions reflected in the body of bank, credit card, debit card, insurance, and similar statements and their relative proximity to the subject apartment.
Prior to the onset of COVID-19, showing such transactions was relatively easy if a tenant legitimately maintained the apartment as their primary residence. But New Yorkers have been quarantining for more than 6 months now, begging the question of how to prove primary residence on both sides of the landlord-tenant relationship. Even though everyone has been on lockdown, not everyone has lived in their own home. Landlords may question a tenant’s residency if a tenant relocates – even if temporarily – away from the regulated apartment and establishes a nexus with a new residence. Tenants who have few or no records to reflect their continued occupancy may fear eviction.
This is an unprecedented time and tenants are taking refuge in the homes of friends, family members, or vacation rentals. It is important to note that there are no absolute bright-line rules when it comes to determining what constitutes primary residence. It is impossible to predict precisely which situations will be excused and which will not. In addition to documentation, courts will look at the credibility of the witnesses at trial and the overall totality of the circumstances.
Due to the continuing pandemic, landlords and supervising agencies recognize the constraints of having a paper trail. But the primary residence obligation remains. Tenants are certainly not prohibited from staying elsewhere, but caution should be taken not to formally establish a new residence, or even the appearance of one. A significant factor in this election year is sure to be the address used on voter registration. Courts may have to balance between transitory records such as grocery and other daily spending records and travel records on the one hand, and more permanent records such as voter residence, driver’s license, mailing address for bills and bank statements, utility bills, and location of bank accounts, on the other.
Evidence of Tenant's ResidenceBoth landlords and tenants should think creatively to evidence a tenant’s residence. Tenants should retain receipts or other records of food, grocery, pharmacy, or other deliveries, and keep track of visits to their doctors and EZPass records. Even a printout of “on demand” shows or movies watched, Seamless or GrubHub or other online ordering and delivery services are all evidence of a tenant’s at-home activities. Landlords should consider installation of motion-activated video surveillance cameras, which can capture a tenant’s comings and goings, deliveries, visitors, and, possibly, subtenants or temporary occupants (such as AirBnB guests). This proof, together with or in the absence of traditional documentation, will be important indicia of a tenant’s primary residence.
We have represented both landlords and tenants in non-primary residence matters. If you have any questions regarding primary residence or the ability to prove it, please contact Gallet Dreyer & Berkey, LLP.
 The initial burden of proof of non-primary residence is different between rent regulation, where it is the landlord’s initial burden, and Mitchell-Lama, where it is the tenant’s initial burden.
 28 RCNY 3-02(n)(4)(iv) requires that a tenant maintain the subject apartment for not less than 183 days per year.
 Exceptions to the 183-day standard include absences due to illness or caring for a family member who is ill and persons whose professions require itinerant travel – such as a professional singer or actor.