If you hold a rent-stabilized or rent-controlled apartment in New York City, you keep your right to renew only if the unit is your primary residence. The NYC rent-regulated primary residence requirements come from the Rent Stabilization Code at 9 NYCRR 2520.6(u), which lists four factors courts weigh together, and from a parallel rule for rent-controlled units in the City Administrative Code. No single factor decides the case, but a mismatch on any of them gives a landlord an opening.1Legal Information Institute. New York Codes, Rules and Regulations Title 9 2520.6 – Definitions
The Four Factors Courts Weigh
The Rent Stabilization Code identifies four evidentiary factors and states that “no single factor shall be solely determinative.”1Legal Information Institute. New York Codes, Rules and Regulations Title 9 2520.6 – Definitions A court considers all of them:
- Whether you list an address other than the apartment on any tax return, driver’s license, motor vehicle registration, or other document filed with a government agency.
- Whether you use a different address for voter registration.
- Whether you occupied the apartment fewer than 183 days during the most recent calendar year.
- Whether you have sublet the apartment.
The appellate court in Katz Park Ave. Corp. v. Jagger confirmed that a court “should consider all of the relevant evidence” rather than seize on any single indicator.2New York State Law Reporting Bureau. Katz Park Ave. Corp. v Jagger Even if you sleep in the apartment most nights, a driver’s license listing a suburban address or voter registration in another state can undercut your position. Landlords assemble these factors like a puzzle, and inconsistencies across them are where most tenants get into trouble.
Rent-controlled apartments follow a parallel rule. NYC Administrative Code Section 26-403(e)(2)(i)(10) makes non-occupancy as a primary residence a ground for eviction and requires the landlord to give at least 30 days’ notice before starting a court proceeding on that basis.3NYC Administrative Code. New York City Administrative Code Title 26 Chapter 3 Rent Control – Section 26-403
The 183-Day Question
Of the four factors, days of occupancy is the only one with a hard number. If a landlord shows you spent fewer than 183 days in the apartment during the most recent calendar year, that’s strong evidence the unit isn’t your primary residence. It isn’t an automatic disqualifier. Courts have distinguished “primary residence” from “domicile” and defined primary residence as an “ongoing, substantial, physical nexus with the premises for actual living purposes,” proven by objective evidence.4New York State Law Reporting Bureau. Katz Park Ave. Corp. v Jagger
In practice, landlords pull building access logs, doorman records, utility consumption patterns, and mail delivery to argue the apartment sits empty. Electricity usage that drops to near zero for months tells a story. A tenant who narrowly misses 183 days but has consistent utility bills, local medical appointments, and government documents at the apartment address can still prevail.
When an Extended Absence Doesn’t Break Your Tenancy
The 183-day factor cross-references a separate provision at 9 NYCRR 2523.5(b)(2) that excuses “temporary periods of relocation” when the absence is involuntary or tied to a specific purpose.1Legal Information Institute. New York Codes, Rules and Regulations Title 9 2520.6 – Definitions The categories recognized in DHCR practice and case law include:
- Active military deployment.
- Full-time enrollment at a college or university away from the city.
- Hospitalization or placement in a care facility for treatment.
- Employer-directed work assignments for a defined period.
The common thread is intent to return. A tenant on a six-month work assignment who keeps furnishings in the apartment, pays rent, and returns on weekends is in a different position than someone who quietly moved to the suburbs two years ago. Documentation does the work here: deployment orders, enrollment verification, hospital records, or an employment letter describing the assignment’s duration.
The rent control law adds one explicit exception. A domestic violence survivor who leaves the apartment because of violence is still deemed to occupy it as a primary residence so long as they assert an intent to return.3NYC Administrative Code. New York City Administrative Code Title 26 Chapter 3 Rent Control – Section 26-403
Records to Keep Now
A primary residence challenge can arrive with little warning, so build your evidence before you need it. The strongest records mirror the four statutory factors.
Tax returns carry significant weight. Both federal and state returns should list the apartment as your home address. If you need to prove what address appeared on a prior-year return, the IRS provides tax transcripts through Form 4506-T.5Internal Revenue Service. About Form 4506-T, Request for Transcript of Tax Return A gap between your tax address and your apartment address is one of the easiest things for a landlord to find.
Your driver’s license, state ID, and any vehicle registration should all show the apartment. Update them promptly and keep them current. Register to vote at the apartment and actually vote from it.
Beyond the four statutory factors, courts also look at utility bills, bank statements, medical provider addresses, and similar records showing you conduct daily life from the apartment. Several years of consistent utility usage is particularly persuasive because it shows ongoing occupancy month by month.
Subletting Without Losing the Apartment
Subletting is one of the four factors, so handling it carelessly can cost you the tenancy. The Rent Stabilization Code permits subletting under strict conditions. You must maintain the apartment as your own primary residence and intend to return when the sublease ends.6Legal Information Institute. New York Codes, Rules and Regulations Title 9 2525.6 – Subletting and Assignment
The time limit is concrete. You cannot sublet for more than two years out of any four-year period preceding the end of the proposed sublease.6Legal Information Institute. New York Codes, Rules and Regulations Title 9 2525.6 – Subletting and Assignment The rent you charge the subtenant cannot exceed the legal regulated rent, though you can add up to a 10 percent surcharge if the apartment is fully furnished. Overcharging exposes you to treble damages.
You also need the landlord’s written consent before the sublet begins. The process tracks Real Property Law Section 226-b: send a certified letter with the proposed subtenant’s name, the sublease term, and the other required details. The landlord then has 30 days to consent or state written reasons for refusal. Silence counts as consent. Skipping this process, or going past the two-year limit, gives the landlord grounds to terminate your tenancy.
How a Primary Residence Challenge Unfolds
A landlord who thinks you aren’t using the apartment as a primary home cannot simply refuse to renew. The process begins with a formal notice on a strict timeline.
The Golub Notice
The landlord must serve a termination notice, commonly called a Golub Notice, at least 90 days but no more than 150 days before the current lease expires.7Legal Information Institute. New York Codes, Rules and Regulations Title 9 2524.2 – Termination Notices The notice must identify primary residence as the ground and set out the facts the landlord is relying on.8Legal Information Institute. New York Codes, Rules and Regulations Title 9 2524.4 – Grounds for Refusal to Renew Lease A vague notice that simply says “you don’t live here” without factual detail is defective.
The code also requires 30 days’ notice of intent to start a primary-residence proceeding, which can be combined with the Golub Notice itself.8Legal Information Institute. New York Codes, Rules and Regulations Title 9 2524.4 – Grounds for Refusal to Renew Lease If the landlord misses the 150-day outer window or serves fewer than 90 days before expiration, the notice is defective and you are entitled to a renewal lease for that term.
The Holdover Case
After the lease expires, the landlord files a holdover case in Housing Court seeking a judgment of possession.9New York State Unified Court System. New York City Housing Court – Starting a Holdover Case The landlord carries the burden of proving by a preponderance of the evidence that you do not use the apartment as a primary residence. Even after the landlord makes an initial showing, the ultimate burden of persuasion never shifts to you.10New York State Law Reporting Bureau. ACP 150 W. End Ave. Assoc., L.P. v Greene You do need to come forward with rebuttal evidence, but the landlord must still prove the case by the end of trial.
If you win, the court orders the landlord to offer a renewal lease, and the choice between a one-year or two-year term remains yours under rent stabilization.11Rent Guidelines Board. Leases, Renewal, and Vacancy FAQs
Succession for Family Members
The primary residence rule reaches beyond the named tenant. When a rent-regulated tenant dies or permanently leaves, a family member who lived in the apartment can take over the tenancy only by demonstrating their own primary residence in the unit for a qualifying period.
For rent-stabilized apartments, the family member must have lived there as a primary resident for at least two years before the tenant’s departure, or since the beginning of the tenancy or the relationship, whichever is shorter. For family members 62 or older or who have a disability, the requirement drops to one year.12Rent Guidelines Board. Succession Rights FAQs Rent-controlled apartments follow the same two-year rule with the same one-year reduction for seniors and people with disabilities.
“Family member” is defined broadly and includes spouses, children, parents, domestic partners, grandchildren, and others who can show emotional and financial commitment equivalent to a family relationship. The evidentiary standard is the same one described throughout this article. A family member whose government documents point elsewhere faces the same scrutiny the original tenant would.
Where to Get a Lawyer
NYC’s Right to Counsel program provides free legal representation to tenants facing eviction in Housing Court, regardless of immigration status and in every ZIP code across the five boroughs.13NYC Mayor’s Office. Right to Counsel This covers holdover proceedings based on primary residence. The program is administered through the Human Resources Administration’s Office of Civil Justice, which funds nonprofit legal services organizations.
If you don’t reach Right to Counsel, other options exist. The Legal Aid Society, Legal Services NYC, the New York Legal Assistance Group, and other organizations provide free landlord-tenant representation to low-income New Yorkers.14Rent Guidelines Board. Housing and Legal Assistance Housing Court also runs a Volunteer Lawyers Program for unrepresented litigants. A primary-residence holdover is one of the more complex Housing Court proceedings, and tenants who try it alone are at a real disadvantage. If you receive a Golub Notice, call one of these organizations the same week.