Ask Sam: Can I become a snowbird and still keep my rent-stabilized apartment?

Sponsored By Himmelstein McConnell Gribben & Joseph LLP | March 18, 2015 - 9:59AM

Dear Sam: After these brutal few months, I never want to spend another winter in the city. Can I keep my rent-stabilized apartment if I spend my winters somewhere warmer?

Yes, you can spend your winters in Florida without getting kicked out of your rent-stabilized (or rent-controlled) apartment, says Sam Himmelstein, a lawyer who represents residential and commercial tenants and tenant associations. You might even be able to sublet while you're gone, if you go about things the right way.

But be careful how long you stay down there: you need to spend more than half of the year actually living in your New York apartment, or your landlord while be within their rights to kick you out on the grounds that the place is no longer your "primary residence." (As it happens, this is the reason Jimmy "The Rent Is Too Damn High" McMillan's landlord gives for their attempts to boot him from his $872-a-month East Village rental.)

There are a few exceptions: you can spend less than six months of the year living in the apartment if you've been absent for medical reasons; are out of town caring for a sick relative; have a job that requires frequent travel (e.g. an "itinerant profession") and don't have a full-time residence elsewhere; are away serving in the military; are sent to prison for a short and definite term; or are temporarily going to school out of town. (Keep in mind that accepting a full-time job out of state doesn't count as an "itinerant profession.")

But what if you play by the rules and your landlord still tries to bring a non-primary residence case against you? "Physical presence is the most important thing," says Himmelstein. "The courts will want to figure out where you sleep, where you eat your meals." Meaning that while things like tax documents and your voter registration can come into play—if you've filed out of state in hopes of saving money, that can be used against you—the key will be proving that you really do spend the majority of your time living in your apartment. "If you booked a flight to Florida on October 1st, and there's not return flight until May 31st, where's the record that shows you're a New York resident," Himmelstein asks.

And make no mistake, your flight records will be a factor here. Landlords have the right to "pre-trial discovery" in non-primary residence cases, and your entire digital footprint will be up for scrutiny. "That means every credit card and bank statement, flight details, tax returns, voter registration, EZ pass bills, everything," says Himmelstein. "I tell clients to get all those documents together right away—even your appointment book or calendar is fair game."

One other detail to keep in mind: you'll most likely have to sit for an under-oath deposition before your trial, and your landlord's lawyer can ask you questions about all the documents you've handed over, and where you've been living. When this happens, it's crucial to have your facts straight. "They get a sneak preview of what your testimony is going to be, and if you don't stick to your story, that can be used against you," says Himmelstein.

Of course, for market-rate residents, if you keep sending in those rent checks every month, you can stay on your Miami getaway as long as you like, unless the lease has a requirement that the apartment be your primary residence—a rare requirement for most landlords.

Sam Himmelstein, Esq. represents NYC tenants and tenant associations in disputes over evictions, rent increases, rental conversions, rent stabilization law, lease buyouts, and many other issues. He is a partner at Himmelstein, McConnell, Gribben, Donoghue & Joseph in Manhattan. To submit a question for this column, click here. To ask about a legal consultation, email Sam or call (212) 349-3000.

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