Dear Sam: I've lived in my rent stabilized New York apartment for 25 years, but have to travel frequently to Philadelphia to care for my sick mother, and may not be in residence for more than half the year. Should I have my lawyer send a registered letter to my landlord informing him of the situation so that I have a written record of communication, in case he tries to evict me? And what specific law or statute allows me to keep my apartment if I'm gone to take care of a sick family member?


While your landlord shouldn't be able to evict you for leaving town to care for your ailing mother, you shouldn't contact your landlord about your absence, and should instead focus on making sure your paperwork will support your case in the event they try to evict you, says Sam Himmelstein, a lawyer who represents residential and commercial tenants and tenant associations.

"Don't send a registered letter to the landlord—why tip them off?" says Himmelstein. "In order for the landlord to challenge you, the first thing they have to do is notice that you're gone. So why draw attention to yourself." Generally speaking (as you already likely know), you're required to reside in a rent-stabilized apartment for more than half the year if you want to be considered its primary resident, and avoid the possibility of  eviction.

One of the exceptions to this rule is if you're out of town for medical reasons, including caring for a sick family member. "While there's nothing in the housing codes that specifically allows for this, in interpreting what constitutes 'primary residence,' courts have consistently said that you can be away even for two or three years if you show that the sole reason is to take care of a sick relative," Himmelstein explains.

However, thanks to a recent ruling, says Himmelstein, courts seem to be relying more on paperwork (such as your voter registration, tax filings, etc.) to determine if a home is your primary residence, rather than the simple standard of whether or not you spend more than half the year there. "It's really awful for tenants, because most people's lives aren't 100% in one place," says Himmelstein.

To protect yourself against any potential eviction proceedings, says Himmelstein, "There should be no paperwork whatsoever that connects you to Philadelphia, whether it's a driver's license, voter registration, mail forwarding, or tax return. You should look on paper like you reside 100% in New York."

And if the landlord does try to boot you on the grounds of non-primary residence, make it clear in your response that your sole reason for being away is taking care of your mother, and be prepared to provide concrete information, such as names, locations, and a note from her doctor, as well as an assurance that you'll return to the apartment as soon as your care is no longer needed.

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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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