A PRIMER ON NON-PRIMARY RESIDENCE CASES
© James B. Fishman, 2005
Non-primary residence claims are perhaps the most common type of holdover proceedings brought by landlords in New York City, particularly in Manhattan. Although every case has its own unique set of facts, the cases generally follow a common path. The purpose of this primer is to provide a general outline of non-primary residence cases and answer some of the more frequently asked questions. Most of these questions apply to rent stabilized tenancies. Rent Controlled tenancies have their own rules which are sometimes, but not always, the same as rent stabilized tenancies. Not all of the information set forth here will necessarily apply to all cases and you should always consult with a lawyer to determine the specific laws, procedures and regulations that apply to your case.
1. What is the procedure landlords must follow to commence a non-primary residence case?
During the “window period” (90-150 days before the end of your current lease) the landlord is required to send the tenant a “notice of non-renewal” of their lease (also called a “Golub” notice). If the landlord missed this period, even by a day, the case is subject to dismissal. Often landlords combine the Golub notice with a thirty day notice of termination advising the tenant that their tenancy is terminated upon its conclusion. Neither the Golub notice of the termination notice constitutes the commencement of an eviction proceeding. A holdover proceeding cannot be commenced until the current lease ends.
2. What is the landlord required to allege in a Golub notice?
The landlord is required to “clearly, unequivocally and unambiguously” allege facts which, the landlord contends, show that the tenant is not using the apartment as their primary residence. The Courts have not required that the notices contain all of the facts necessary to win a case but only just enough facts to show that the landlord has a valid basis to pursue the claim. If notice does not contain sufficient facts or if it is not clear the case is subject to dismissal.
3. What is a holdover proceeding?
A holdover proceeding is a type of summary eviction proceeding commenced in the Housing Court in which landlord seeks to recover possession of the tenant’s apartment.
4. Besides possession what else can a landlord request or obtain in a holdover proceeding?
The landlord can request that the court award “use and occupancy” at a market rate. “Use and occupancy” or “u&o” is money for the use of an apartment in lieu of rent. Landlords are not permitted to collect rent from tenants once they have terminated their tenancy. Market rate u&o can only be awarded to the landlord if it is successful at the end of the case. In addition, if the lease includes an attorney’s fee claim then the landlord can also recover their attorney’s fees from the tenant if he/she prevails in the case. If the tenant prevails then they can recover their attorney’s fees from the landlord so long as the lease permits the landlord to do so.
5. What are the standards used by the Court to determine if the apartment is the tenant’s primary residence?
Physical connection to the apartment is the single most important factor; documents are corroborative evidence. The courts look at physical presence first with objective evidence such as bank statements, credit card bills, phone records which provide an electronic footprint of the tenant’s whereabouts being crucial. Documents which list the address are secondary, and an explanation for the tenant’s absence from the apartment, if one exists (i.e taking care of a sick relative, itinerant profession, etc.) are considered as explanations for absence. The types of objective evidence include, but are not limited to, filing of NYC resident income tax returns, voting records, bank account records, drivers license, automobile registration, utility bills, and the number of days spent in the apartment during the preceding year. However, a tenant is not required to spend 183 days in the apartment to prevail. Tenants whose jobs or family obligations require extensive travel or absence from the apartment are not automatically deprived of their apartment for this reason alone. In addition, the court will consider the presence, or absence of corroborative evidence placing the tenant at the second, suspected, address.
6. How do these cases generally proceed once they are filed?
Typically soon after the case is filed the landlord will serve a motion asking the court to permit it to conduct discovery. Discovery is the process by which a party obtains information from the other side about their case before trial. In addition, landlords will typically ask the court to order the tenant to pay “u&o” during the pendency of the proceeding. The appellate courts generally grant landlord discovery motions so it often does not make sense to expend time and resources fighting it. It is, however, possible to narrow some of the more broad document demands so that they are tailored to the case at hand. Occasionally a tenant may have a basis to seek discovery of the landlord although this is generally not the case.
If the court directs the payment of u&o before it is concluded it will likely be set at the same rate that the tenant was paying before the case began. However, if the landlord is ultimately successful in the case they will likely request that the tenant be required to pay, retroactive to start of the case, the difference between the regulated rent and the fair market rent.
7. How long do primary residence cases take to resolve?
It is impossible for any lawyer to accurately predict how long a case will take because there are many factors involved that are simply outside of the tenant’s control. The range is anywhere from a few weeks (if the landlord is convinced not to bring the case in the first place) to one or more years (if there is extensive motion practice, judicial delays, landlord delays, appeals etc.)
8. How much does it cost to defend a primary residence case?
Tenant lawyers typically handle these cases on an hourly basis. As stated in number 6, it is impossible to predict how long a particular case will take. A range $2,000 or less up to substantial five figures is possible. The most typical case will average at least $10,000, spread out over the length of the case. If a lease is produced which contains an attorney’s fee clause the prevailing party in the case can seek to recover their legal fees from the other side.
9. What should a tenant do to help prepare their case?
After receiving the Golub notice tenants should begin collecting and organizing their documents which establish their primary residence. This includes tax returns, bank account statements, insurance documents, credit card statements, automobile registrations, drivers license, cancelled checks for utilities, utility statements, employment records, medical records, school records, E-Z Pass statements, etc. Organizing these documents in clear and coherent way will save time and expense for the tenant. An excellent way to do this is with a color coded chart which tracks the tenant’s physical presence in any particular geographic location for the 2-3 years prior to case commencement. This should include references to the above documents Landlords can, if necessary, obtain travel records passports, EZ pass records, airline flights through third party subpoenas. The tenant should also begin preparing a list of witnesses who can testify where the tenant lives. Other tenants in the building who have been in the tenant’s apartment are a good choice. The tenant should meet with an experienced tenant lawyer as soon as possible after service of the Golub notice to begin planning a defense. The tenant should instruct their attorney not to turn over any documents to the landlord without first redacting all personal identifier information such as account numbers and social security numbers. Occasionally, an experienced, well-respected tenant lawyer may be able to convince a landlord’s attorney not to proceed with a case before it is commenced. This should be attempted if the tenant is interested in avoiding blacklisting. (See No. 12 below)
10. What do Landlords do to help prove their case?
Landlords are increasingly using various surveillance tactics to attempt to show that a tenant does not primarily reside in their apartment, and/or that somebody else does. These tactics can include private investigators, hidden video cameras in the public hallways, hiring other tenants to spy on their neighbors and requiring doormen to keep track of a tenant’s coming and going. Most of these practices are not illegal. Landlords are not, however, permitted to install cameras that can view inside a tenant’s apartment. See, (Your Landlord’s Dick–Building Owners Hire Spies to Win Evictions”, Village Voice, August 3, 1999)
11. What happens after discovery is completed?
Once the landlord sees the strength of the tenant’s case their lawyer may initiate settlement discussions. Sometimes tenants are offered money (“buyout”) to vacate the apartment. The amount of any buyout and the amount of time the tenant will be afforded to leave are always subject to negotiation and is affected by many different factors. If the tenant’s case is weak any buyout offer will likely not be very significant.
12. I’ve heard about “blacklisting.” What is that and how does it affect my rights?
For about the past ten years the New York State Court System has been selling data about Housing Court eviction cases to data brokers known as “tenant screening bureaus” (“TSB’s”) These companies purchase data about eviction proceedings and sell it to prospective landlords who use it to assist in making rental decisions. Information about eviction cases can be reported for up to 7 years. Many TSB’s operate nationally so that a landlord in another city or state can learn about a New York City eviction proceeding. TSB’s only purchase information about cases that have actually been filed. Service of a Golub notice does not constitute the filing of a case. Only the service of a petition and notice of petition constitutes the commencement of a court case that can lead to blacklisting. Tenants who are likely to be seeking rental housing during the next seven years should be aware of the ramifications of blacklisting. If the tenant is particularly concerned about this issue they should consider having their attorney attempt to negotiate a settlement of the case before it is actually commenced so that they are not subjected to blacklisting. For a more detailed discussion, see, Blacklisted, City Limits City Limits Magazine, March, 2004)
13. Is there anything else a tenant should do to prepare their defense?
Tenants should request a copy of their current credit report from the three national credit reporting agencies: Trans Union, Equifax and Experian. The reports can be obtained online and are helpful in determining if the landlord has impermissibly obtained the tenant’s credit report in violation of federal law.
14. What is Housing Court litigation like?
Cases are heard by Housing Court judges who only hear eviction proceedings. Many Housing Court judges are former practitioners who previously represented tenants, landlords or both. Defending an eviction proceeding in Housing Court can be stressful. Many tenants represent themselves but are often taken advantage of by landlord attorneys. Tenants who are represented by lawyers not familiar with the intricacies of Housing Court and landlord/tenant practice are often find that they are actually worse off than if they represented themselves. The most effective way for tenants to succeed in Housing Court is with an experienced tenant attorney who can fully explain all options and procedures along the way.
15. Do tenants stand a chance of winning their case against a determined landlord?
Every case must be evaluated on its own facts. However, even if the tenant has a strong case it is still important that they be represented by an experienced tenant lawyer who can secure the best possible result as quickly as possible. A tenant should question a prospective lawyer about their background and experience, ask for references, ask what percentage of their practice involves landlord/tenant eviction cases and whether they also represent landlords. Hiring a good tenant lawyer can often save the tenant money in the long run because it can often be expensive to undo mistakes made by someone unfamiliar with the area. Also, if the landlord knows the tenant has a good tenant lawyer they may be less likely to seek that tenant’s eviction in the future.