Please note: DHCR no longer distributes this Fact Sheet and portions may be out-of-date. Contact DHCR for up-to-date information. For best viewing and printing, format this document in a monospaced font, i.e., Courier. ------------------------------------------------------------ DHCR FACT SHEET Division of Housing and Community Renewal HOW TO ESTABLISH PRIMARY RESIDENCE BY A TENANT NOTE: This Fact Sheet should only be used as a guide since it informs the reader of the **general** criteria used to determine whether or not a housing accommodation is a tenant's primary residence. It also contains **general** suggestions as to how a tenant may establish primary residency. As such, the Fact Sheet is only informational, and not conclusive. It does not contain every rule applicable to primary residence, and should not be solely relied upon by a tenant. A tenant whose primary residence is challenged is advised to consult with an attorney. In New York City, if an owner believes that a tenant is not using his or her rent stabilized apartment as a primary residence, the owner may begin an action in Civil Court to have the tenant evicted from the apartment at the termination of the tenant's lease, on the basis of nonprimary residency. No such action or proceeding may be commenced unless the owner gives thirty days' notice to the tenant of his or her intention to take such action. Also, the owner of a rent controlled apartment may go to court to begin an action for eviction on the basis of non-primary residence after giving the tenant thirty days' notice of such intention. Outside of New York City, DHCR must determine non-primary residence cases for rent controlled tenants, but such cases are adjudicated by the courts for rent stabilized tenants. In New York City, in order for an apartment to be found to be a tenant's primary residence, a tenant must either be living in the subject apartment or, if not living there all of the time, have spent at least 183 days of the preceding calendar year in the apartment. A tenant may be required to submit proof in court that he or she filed a New York City Resident Income Tax Return specifying the address of the subject apartment as his or her residence for the most recent taxable year for which such return should be filed. The requirement for a tenant to spend at least 183 days of the preceding calendar year in the apartment may be excused on the grounds that the tenant was in active service in the Armed Forces of the United States, or that the tenant initially took occupancy during the preceding calendar year. In addition, a tenant may also furnish proof that there was no legal obligation to file a New York City Resident Income Tax Return because he or she was residing in a foreign country, was employed by a foreign government or by an international organization, or that the tenant's income for that year was below the amount required for the filing of a return or for any other ground permitted by the Department of Taxation and Finance. If an owner commences an action to evict a tenant on the ground that he or she does not occupy the apartment as his or her primary residence, the tenant may raise as a defense that he or she specifies the address of the subject apartment in one or more of the following documents: (1) city, state, or federal income tax returns; (2) driver's license; (3) motor vehicle registration; (4) voter registration; (5) any other document filed with a **public** agency. The tenant may also show the court that he or she has neither sublet the apartment nor assigned the lease. The courts and DHCR have broad discretion in such proceedings. Usually, they will consider the address specified by the tenant as his or her place of residence on the above documents. But, they will also take into consideration whether or not the tenant has sublet the apartment or assigned the lease. Tenants should be advised that there is no requirement in any statute or in the Code or Regulations which require a tenant to submit any proof of primary residence to a owner prior to trial. At that time, the owner has the burden of proving that you are not a primary resident. You do not have to provide any documentary proof of primary residence unless directed to do so by a judge or when you testify at trial. Any persistent request by a owner for such documents as a copy of your New York City or New York State Resident Income Tax Return may constitute harassment. Furthermore, if a owner commences a court proceeding for which he or she has no legal basis, he/she may also be guilty of harassment as well. (Jan. '86) Mario M. Cuomo, Governor William B. Eimicke, Commissioner Manuel Mirabal, Deputy Commissioner Rent Hotline 718-739-6400 ------------------------------------------------------------ DHCR Fact Sheets (series of thirty) are issued by the New York State Division of Housing and Community Renewal (DHCR) as plain- english informational publications. For official agency policies, see DHCR Policy Statements, Advisory Opinions and Operational Bulletins. Also refer to the Rent Stabilization Code, the Rent Stabilization Law and various Rent Control Statutes. Electronic versions of these documents on TenantNet are for informational purposes only and there is no guarantee they will be accepted by any court (or even DHCR) as true copies of DHCR policy. The reader may obtain true copies of these documents from DHCR. Every attempt has been made to conform to the original Fact Sheets as issued by DHCR; TenantNet makes no representation the enclosed material is current or will be applied as written. The reader is advised that DHCR often fails to properly apply, interpret or enforce housing laws. Since housing laws are complex and often contradictory, it is recommended the reader obtain competent legal advice from a tenant attorney or counseling from a tenant association or community group. (rev. 3/13/96) DHCR documents are public documents; the electronic version of such documents have been developed by TenantNet and any added value, enhancements and/or proprietary features are copyright 1994, 1995 and 1996 by TenantNet. These documents may be freely distributed provided they remain intact as herein presented, including this and the top informational banner referencing TenantNet as the original provider. ------------------------------------------------------------ For more information or assistance, call the DHCR Rent Infoline at (718) 739-6400, or visit your Borough Rent Office. Queens Central Office 92-31 Union Hall St. 4th Fl. Jamaica, NY 11433 (718) 739-6400 Bronx One Fordham Plaza Bronx, NY 10458 (718) 563-5678 Brooklyn 250 Schermerhorn St. 3rd Floor Brooklyn, NY 11201 (718) 780-9246 Lower Manhattan 156 William Street 9th Floor NY, NY 10038 (212) 240-6011, 6012 South side of 110th St. and below Upper Manhattan 163 W. 125th St. 5th Floor NY, NY 10027 (212) 961-8930 North side of 110th St. and above Staten Island 350 St. Mark's Place Room 105 Staten island, NY 10301 (718) 816-0277 Nassau County District Rent Office 50 Clinton Street, 6th Floor Hempstead, NY 11550 (516) 481-9494 Westchester County District Rent Office 55 Church Street, 3rd Floor White Plains, NY 10601 (914) 948-4434 Rockland County District Rent Office 94-96 North Main St. Spring Valley, NY 10977 (914) 425-6575 Albany Regional Office 119 Washington Avenue Albany, NY 12210 (518) 432-0596 Buffalo Regional Office Ellicot Square Building 295 Main St., Room 438 Buffalo, NY 14203 (716) 856-1382 ------------------------------------------------------------