Ask Sam: Will I lose my rent-stabilized apartment if I have to leave town to care for a sick relative?

“In order to qualify for a rent-stabilized apartment, the unit does need to be your primary residence, and generally that means you need live in it for more than half the year,” says Sam Himmelstein, a lawyer at Himmelstein, McConnell, Gribbin & Joseph who represents residential and commercial tenants and tenant associations. 

However, being out of town for medical reasons, including caring for a sick family member is typically permitted. "While there's nothing in the housing code that specifically allows for this, courts have consistently said you can be away even for two or three years if you show the sole reason is to take care of a sick relative," Himmelstein says.

If your paperwork, like voter registration and tax filings, supports your claim that the apartment continues to be your primary residence, courts will tend to look favorably on you if a landlord pursues a non-primary residence claim. The standard as to whether you have spent more than half the year in the apartment is secondary. 

As a result, your landlord shouldn't be able to evict you for leaving town to care for a relative. 

Covid created a new class of eviction case

In addition, if you live in a rent-stabilized apartment but moved out of town temporarily because of the pandemic, Himmelstein says a case against you is unlikely to be successful. 

These types of eviction cases, colloquially called Covid refugee cases, are beginning to emerge. “This is where a landlord is claiming non-primary residence of the tenant over the past two years of the pandemic and it might apply to tenants who are elderly or have health issues and went to live in a safer area or with family in another state,” Himmelstein says.

Himmelstein is among the many tenant lawyers who believe renters will not be evicted if they can prove the timing of their departure from the city coincided with increased anxiety about Covid, they have health issues, or are elderly—and if they can show that the apartment was their primary residence prior to the pandemic.

Make sure your paperwork supports your claim

To protect yourself against any potential eviction proceedings Himmelstein emphasizes there should be no paperwork whatsoever connecting you to a secondary address, whether it's a driver's license, voter registration, mail forwarding, or a tax return. “You should look on paper like you reside 100 percent in New York," he says.

And if the landlord does try to kick you out for living somewhere else, make it clear in your response that your sole reason for being away is for health reasons. You should also be prepared to provide information like relevant names and locations as well as an assurance that you'll return to the apartment as soon as your care is no longer needed.

Ideally you would also have a letter from a doctor saying the move was done on the advice of a physician, Himmelstein says. 

Also, in order for the landlord to challenge you, the first thing they have to do is notice that you're gone, so there’s no benefit in reaching out to your landlord preemptively to explain your situation. 

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 & 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.