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Focus on: Non-Primary Residency

Owners, tenants, and their representatives frequently inquire about regulations pertaining to non-primary residency issues and related lease renewals and legal notice procedures. In view of the complexity of this topic and in light of the fact that it is an issue that is primarily under the jurisdiction of the courts, the Office of Rent Administration decided it would be beneficial to establish this link which contains the following relevant material on the topic.

Question

My building owners did not offer me a timely lease renewal, as they thought that I no longer used the apartment as my primary residence. They did not prove this in court and now they have to offer me a renewal lease. When does it commence and what are my rights?

Answer

Renewal leases are required to be offered between 90 and 150 days prior to the expiration of a lease.

In this situation, the owners would offer a renewal lease less than 90 days prior to the expiration of the existing lease. Therefore, the tenant has the option of requesting that the lease be dated to start on (1) the date a renewal lease would have begun had a timely offer been made or (2) on the first rent payment date occurring at least 90 days after the date that the owner does offer the lease to the tenant.

The guideline increase to be charged can never be more than the rate in effect on the date in option (1). Whether the tenant chooses option (1) or (2), the new rent shall not go into effect before the first rent payment date occurring at least 90 days after the offer is made.


Rent Stabilization Code Citations - Non Primary Residency

RSC 2524.4

The owner shall not be required to offer a renewal lease to a tenant, or in hotels, to continue a hotel tenancy, and may commence an action or proceeding to recover possession in a court of competent jurisdiction, upon the expiration of the existing lease term, if any, after serving the tenant with a notice as required pursuant to section 2524.2 of this part, only on one or more of the following grounds:

c) Primary residence. The housing accommodation is not occupied by the tenant, not including subtenants or occupants, as his or her primary residence, as determined by a court of competent jurisdiction; provided, however, that no action or proceeding shall be commenced seeking to recover possession on the ground that the housing accommodation is not occupied by the tenant as his or her primary residence unless the owner or lessor shall have given 30 days' notice to the tenant of his or her intention to commence such action or proceeding on such grounds. Such notice may be combined with the notice required by section 2524.2(c) (2) of this Title.

RSC 2524.2 Termination notices

(a) Except where the ground for removal or eviction of a tenant is nonpayment of rent, no tenant shall be removed or evicted from a housing accommodation by court process, and no action or proceeding shall be commenced for such purpose upon any of the grounds permitted in section 2524.3 or 2524.4 of Part, unless and until the owner shall have given written notice to such tenant as hereinafter provided.

(b) Every notice to a tenant to vacate or surrender possession of a housing accommodation shall state the ground under section 2524.3 or 2524.4 of this Part, upon which the owner relies for removal or eviction of the tenant, the facts necessary to establish the existence of such ground, and the date when the tenant is required to surrender possession.

(c) Every such notice shall be served upon the tenant:

(2) in the case of a notice on any other ground pursuant to section 2524.3, at least seven calendar days prior to the date specified therein for the surrender of possession, or in the case of a notice pursuant to section 2524.4(c) of this Part, at least 90 and not more than 150 days prior to the expiration of the lease term; or

(d) All notices served pursuant to subdivision (c) of this section shall be in lieu of any notice in any lease or rental agreement providing for a lesser time for termination of tenancy.

RSC 2520.11(k)

(k) housing accommodations which are not occupied by the tenant, not including subtenants or occupants, as his or her primary residence as determined by a court of competent jurisdiction;

RSC 2520.6(u)

(u) Primary residence. Although no single factor shall be solely determinative, evidence which may be considered in determining whether a housing accommodation subject to this Code is occupied as a primary residence shall include, without limitation, such factors as listed below:

(1) specification by an occupant of an address other than such housing accommodation as a place of residence on any tax return, motor vehicle registration, driver's license or other document filed with a public agency;

(2) use by an occupant of an address other than such housing accommodation as a voting address;

(3) occupancy of the housing accommodation for an aggregate of less than 183 days in the most recent calendar year, except for temporary periods of relocation pursuant to section 2523.5(b)(2) of this Title; and

(4) subletting of the housing accommodation.


Building Master Television Antennas

The Office of Rent Administration (ORA) has received many inquiries concerning it's policies with respect to the maintenance of a Building Master Television Antenna, in light of the switch from analog to digital broadcasting, mandated by Federal law, scheduled to take effect on June 2009. Therefore, our office has decided it would be beneficial to establish this link which contains the following relevant material on the topic.

Many rent regulated buildings have a master antenna provided by the owner which has been established as a required service. Commonly, the service is still utilized by a small number of tenants who do not have cable television service.

Question

What impact will this new law have on the owner when the television broadcasting is no longer available through the master antenna, if said antenna is a required service?

Answer

The owner will have to find a technological alternative or upgrade, such as a new, updated master antenna, that will enable affected tenants to continue to have television service. Tenants would be responsible to purchase, at their expense, analog-to-digital converter boxes for their televisions. The Federal Government has established a television converter box coupon program that can be accessed at http://www.dtv.gov/.

Last Updated: 03/16/09