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Ask Sam: Could I lose my rent-stabilized apartment if I'm staying with family because of the coronavirus?

Normaly, rent-stabilized tenants can be evicted if they are using their apartments as non-primary residences, but these aren't normal circumstances. 

Austin Havens-Bowen for Brick Underground/Flickr

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Question:

I am staying with family outside the city because of the coronavirus outbreak. If I end up staying away for longer than 184 days, could I lose my rent-stabilized apartment?

Answer:

Given the extent of this pandemic and how it has affected millions of New Yorkers, it’s very unlikely you’ll lose your apartment, says Sam Himmelstein, a lawyer with the firm Himmelstein, McConnell, Gribben, Donoghue & Joseph who represents residential and commercial tenants and tenant associations. 

First, keep in mind that evictions are suspended indefinitely, and housing courts are closed except for emergencies.

Under ordinary circumstances, rent-stabilized tenants can be evicted if they are using their apartments as non-primary residences. The rent stabilization code requires that tenants live in their apartments for more than half the year, so if their landlords discover that tenants are living elsewhere for six months or more, they can begin eviction proceedings (but only at the end of the latest renewal lease, and after serving a 90 to 150 day notice of non-renewal.) There are exceptions made for tenants who are out of town because they’re caring for a sick relative, are hospitalized themselves, or are traveling or temporarily absent for work or school.

However, even before the onset of the coronavirus pandemic, landlords were resorting to this as a means of evicting tenants much less frequently than they had before. Because vacancy deregulation—which allowed landlords to raise the rent by up to 20 percent or even more if the they did improvements, and then deregulate the apartment if the rent exceeded a certain threshold when a tenant moved out—was repealed by last year’s rent reform legislation, landlords have had less incentive to kick out stabilized tenants for this reason, and the frequency of non-primary residence filings has dropped dramatically. (One exception to this trend is for situations in which a rent-stabilized tenant is in occupancy of an apartment that is a cooperative or a condominium—in these cases, the apartment is immediately deregulated upon a vacancy, regardless of the rent.)

And now many stabilized tenants are in your shoes, having left New York amid the Covid-19 outbreak.

“I’ve had half a dozen inquiries in the last couple months about this from stabilized tenants who left town because they wanted to be in a less dangerous atmosphere,” Himmelstein says. “We’re unanimous in our firm—no one thinks a judge would evict you because you wanted to protect your health.”

That said, you should keep a paper trail to prove that you’re still renting the apartment and under ordinary circumstances would be living there.

Make sure the address of your stabilized apartment is listed on crucial documents, like your taxes, voter registration, driver’s license, credit cards, and employment records, Himmelstein advises.

You can also protect yourself from the risk of eviction by keeping your apartment empty at this time. If you sublet without getting permission from your landlord and following legal requirements, you’re vulnerable to being evicted due to a breach of tenancy. Illegal subletting is also a factor that courts consider in determining non-primary residence cases.

Related

Ask Sam: What are the rules for evicting rent-stabilized tenants in NYC? (sponsored)

Ask Sam: What happens if you have a case pending in NYC housing court during the coronavirus crisis? (sponsored) 

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

Ask Sam: I'm rent-stabilized. What is the procedure for subletting my apartment? (sponsored)

Read all our Ask a Renters Rights Lawyer columns here.


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.