Dear Sam: I have a rent-stabilized apartment, and currently spend most nights at my boyfriend’s apartment. Can my landlord decide not to renew my lease, and claim that this is no longer my primary residence? I still only pay rent at my own apartment, not my boyfriend’s.

If you are not careful you  could get the boot as a result of your new relationship, says Sam Himmelstein, a lawyer who represents residential and commercial tenants and tenant associations, though there are a few measures you can take to protect yourself from potential run-ins with the landlord over your frequent absences.

The courts have repeatedly cited physical presence in the apartment for ordinary living purposes as being the most important factor in determining primary residence, Himmelstein explains.  And where one sleeps is the most important consideration in determining where one lives.  "If a court were to believe that your apartment was nothing more than a storage closet, or you were using it mainly as a home office, you could have a problem," he says. "A lot  might also depend how often and for what living purposes you do use the apartment, such as where you eat your meals, watch television and socialize." (That said, just this week, a housing court judge ruled against a landlord who tried to boot a tenant for spending too many nights at her boyfriend's apartment.)

It would better if your boyfriend stays at your place some of the time (and it's good that you're not paying rent at his), and if you limit your nights away to less than half the time, he adds.

And while the general rule for primary residence cases is that you have to be spending more than six months of the year in your apartment, Himmelstein notes that if you're looking to be on the safe side, don't move any major possessions to your boyfriend's apartment, continue have all of your mail sent to your old address, and above all, resist the urge to sublet. "Your base of operations should still be your apartment," says Himmelstein. "But unless it's a doorman building, you've got a nosy super, or the landlord is actively investigating and/or using cameras, it's not likely anyone will find out.


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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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