Answer:
"The answer to the question is yes," says Steven Wagner, a partner in the real estate law firm Wagner Berkow. "It may reduce the amount of money you get significantly, but it doesn't prevent you from getting a buyout, and there are certain circumstances where it may not even affect the amount that you would get in a normal buyout."
First of all, there are certain types of absences that are allowed under rent stabilization. If you moved to Tahiti to pursue a career in beach-combing, your landlord could refuse to renew your lease and pursue what's called a non-primary residency case against you. Not living in your apartment for more than half the year is one of the ways a landlord can show that you are not using the apartment as your primary residence and use that fact to evict you from a rent-stabilized apartment. But if you're away at college or seeking medical treatment, for example, it doesn't count towards your time away, and you're still entitled to a renewal lease as long as you're paying rent and have otherwise kept the apartment as your address on all of your records.
Similarly, even if you're doing your Tahiti thing, if you have a son who lived in the apartment until recently and is now away at college, he is entitled to get the lease put in his name. So for negotiation purposes, it would be almost as if the apartment is already occupied by a young person who plans to be there for years to come.
Wagner negotiated a case like this on behalf of a family with a son who was away at university. The parents had divorced; the mother had moved out; and the husband had passed away.
Still, Wagner says, "We had the right to have this young man return, and to live in that apartment, a nice big Upper West Side apartment, for many years in the future, and he would have, so it was worth good money to have the landlord offer the son and the estate a buyout."
Another thing to keep in mind is that if your landlord doesn't know you've left the apartment, it's not on you to disabuse her of this notion.
Wagner recalled negotiating a "high five-figure buyout" on behalf of people who had moved out of their apartment to France nine years prior.
"Some landlords don't thoroughly investigate for some reason. I never made any representation about the tenants' whereabouts, and I didn't feel I was obligated to say anything, and they didn't ask me," says Wagner, who typically accepts buyout cases on a contingency fee basis, meaning no fees are owed until and unless a buyout is secured. "It wasn't beneficial to my client to bring a fact that they didn't know and they hadn't asked about."
Even if your landlord does know you've left and don't intend to return, depending on the plans for the building or the apartment, it could be worth his while to buy you out. Otherwise, he may have to wait till the end of your lease term, and as Wagner notes, if he fails to provide you with notice that your lease won't be renewed in the proper period before your lease runs out, you have rights to renew for another two years even if you do not reside in the apartment. That said, depending on the urgency of the landlord's business plan and your realistic likelihood to return to the apartment for any period of time, you're probably looking at less money than if you'd stayed.
Wagner recalls representing a 97 year old who'd moved into a medical facility. "When the landlord realized she wasn't there anymore, we were already midway through negotiations, so all that happened is the landlord stopped offering more money," he says. "We took the buyout, which was tens of thousands of dollars, because there was no intention of continuing to pay for the apartment."
In all of this, it's advisable to hire a lawyer to handle the outreach to the landlord.
"Very often the tenants don't know what the rules are, so they can be overmatched," Wagner says. "There's a whole negotiating strategy. I would recommend the tenant speak to counsel who can look into what's going on with the building, whether there's a non-primary residence case, whether there's an un-curable condition such as Airbnb, and do a financial analysis to figure out what you can get and whether what you can get is worthwhile."
New York City real estate attorney Bonnie Reid Berkow is a founding partner of Wagner, Berkow & Brandt with more than 30 years of experience litigating in state and federal courts in New York state, including cases involving breach of contract, fraud and breach of fiduciary duty, in addition to real estate disputes and commercial actions. To submit a question for this column, click here. To ask about a legal consultation, send an email or call (646) 780-7272.
