Sometimes when I take my family away for the weekend, like to my parents’ in NJ, I think to myself – “what am I doing here??” Why do I spend my days cramped on the subway, pushing past people on the sidewalk, stepping in dirty puddles, and ignoring proselytizers? First off, that’s not totally an honest picture. My family spends tons of time at the beautiful Brooklyn Bridge parks (Pier 6 baby), Prospect Park, Coney Island/ Luna Park, our beautiful local beaches, and at the museums. But also – who can really put the allure of our city into words? NYC is the birthplace of American innovation and multiculturalism. True, many of us leave, but many of us could not dream of leaving, especially those of us fortunate enough to rent a rent-stabilized apartment.
This article discusses what “primary residence” means for rent stabilized tenants in the litigation context. We at Crumiller P.C. celebrate all tenants who primarily reside here in NYC! We look forward to seeing you at our children’s schools, at our voting booths, and at the park.
Two Types of Non-Primary Residence Cases
Primaryidence cases tend to take two forms. One is the tenant who owns a second property, typically upstate or in Florida, who usually works in the city and spends his or her leisure time elsewhere. The other type of case involves a tenant whose faced some sort of one-time or unusual circumstance which led to temporary obligations taking her elsewhere – to care for an ailing family member, say, or a short-term business arrangement.
My firm has handled many of the latter type of non-primary residence case, including the leading Appellate Division case on what constitutes a “temporary and excusable” absence from the apartment (Second 82nd v. Veiders, [cite]). As a firm dedicated to fighting to eliminate unnecessary friction between our work/ family obligations, fighting these cases holds a special place in our hearts. When our rent-stabilized clients are subjected to an eviction proceeding solely because they have taken the time to care for a family member, they are effectively being forced to choose between their family and their home. We reject this false dichotomy and we are proud to advance the interests of tenants who should not have to forfeit their long-time home just because they were unwilling to say “sorry mom, I can’t be with you at your deathbed, I have to stay physically tethered to my NYC apartment or else my landlord might sue me.” It’s tragic that rent stabilized tenants have to face such a calculus.
But what about the other cases? A rent stabilized tenant living the dream: an affordable apartment in the city, a vacation home elsewhere – someone who comes and goes as they please. As Ronda Kaysen addressed in her latest “Ask Real Estate” column (which inspired this post), we NYCers love to hate on these folks. We resent them and we wish they would be put in their place somehow, either by having to pay more rent or even losing their apartment. “Not everybody gets to live in Manhattan!” we exclaim.
But why not? Why shouldn’t we advocate and strive for more – for all of us, and not only the super-rich who can afford this enviable lifestyle that many of us aspire to (myself included)? It seems to me like a form of societal self-sabotage. Instead of resenting those who are able to live the lives the rest of us want, why don’t we say “good for them” and ask how we ourselves can figure out a similar arrangement? Others’ good fortune is not hurting the rest of us.
True, there are those who abuse the system and who maintain their NYC apartments as pied-a-terres. But for our clients, they know where their home is. It’s where their heart is! Our city has its problems, but it’s still the greatest city in the world.
Where We Put Down Roots
My daughter just started first grade at our local public high school. My younger daughter is in daycare at Federal Plaza. My choir, the Cecilia Chorus, just started its new season (Walt Whitman’s Bicentennial). Many of my long-time friends and colleagues, including my very own associate Caroline Piela, ran for – and won! – local
elected office. My law firm continues to bring cases at our city’s very own Human Rights Commission, which has the gold-standard of human rights laws. I regularly give talks in the community and am organizing several events for the nonprofit on whose board I’m a Director (the Gender Equality Law Center). Last weekend alone my family went to the Bronx Zoo and the Brooklyn Children’s Museum.
Each of our non-primary residence clients has his or her own version of what it means to call NYC our home. We have our local dive bars, our local community organizations, our favorite spots in the park, our favorite shared memories. I love litigating primary residence cases because in order to do an excellent job – and the stakes are high – you must delve into these personal histories.
Most people I speak to about primary residence cases tend to fixate on the 183 days. “What exactly counts as the 183 days?” or “Does the 183 days mean calendar year or any particular period?” I generally advise people to throw this line of thinking out the window. First of all, if you have an alleged alternate primary residence, other locations (such as other travel) neither count for you nor against you. You can travel extensively and be in your apartment far fewer than 183 days out of the year, but if you are staying at a bunch of other places, rather than just one, you should be safe. Similarly, if you vote or pay taxes elsewhere, you can spend all the days and nights you want in NYC, but you can kiss your rent-stabilized apartment goodbye.
It sounds cliched to say that “home is where the heart is”, but the truth is that judges look at the entire picture of your life to determine where your primary residence is. First and foremost, where do you pay taxes? If you learn only one thing from reading this article, it is for the love of Alexander Hamilton do NOT try to avoid paying your NYC taxes. Don’t vote elsewhere, either. Trust me, I know how hard it is when your vacation home is in a swing state. I feel you. But you are not doing the cause any good by getting evicted from your home. Think of all that time spent apartment-hunting instead of phone-banking.
Where are your belongings? Where do you sleep in the NYC apartment? Where do you sleep at the other place? Where are your friends? What activities do you do? Where do you work? What’s your work set-up both here and there? Where is your love life? Note, asking about sex is off-limits at these trials. But if all your dating profiles say you live in Florida, you could have a problem on your hands.
In short, the legal analysis is highly intrusive – but also comprehensive. Faced with a challenge to your primary residence, you will need to be prepared to bare all. Where you shop, where you eat, where you sleep. It’s not fun, but justice will prevail, as long as you have an attorney who is willing to dig deep and do the work required to paint an accurate picture of your life and the ways in which it is centered here.