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I need advice on how best to protect myself against a non-primary residence proceeding due to unusual family circumstances.

New York, NY |

I have lived in a rent stabilized apartment in my name since 1991.
My ex-girlfriend and our 9 year old son also live in the apartment.
Since our relationship is over, we wish to live separately, but she is unable to move at present for financial reasons.
I have found a small apartment that I can sublet without signing any kind of lease (suitable for me but not for her).
My stabilized apartment would continue to be my primary residence in every way except that I would most likely spend somewhat less than 180 days/year actually sleeping there.
Would the fact that my possessions and my son remain in the apartment protect me from a non-primary residence claim?
Ultimately, I wish to keep the apartment for myself.
Should I consider subletting the apartment to my ex for a period of time?

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Attorney answers 4


You should consult an attorney about this matter. The facts you detail in your post require discussion and analysis which should be confidential.


Speak with an experienced landlord tenant lawyer off line confidentially. Your fact pattern is not favorable to you.

If this answer is helpful, then please mark the helpful button. If this is the best answer, then please indicate it. Thanks. For further information you should see an attorney and discuss the matter completely. If you are in the New York City area, then you can reach me during normal business hours at 718 329 9500 or



This question only involves future plans, fortunately. I am not at any risk at the present time. Thank you. I will get some carefully considered advice as to how to proceed.


From what you recount, under the Section §2520.6(u) of the RENT STABILIZATION CODE, you would not be able to claim the apartment as your primary residence. Consult a local real estate attorney.

If you found this "helpful" or "best answer," please click it with my appreciation. My response is for educational purposes and does not constitute legal advice nor creates an attorney client relationship which requires all the details and a personal conference.


Dear Tenant:

A rent stabilized tenant with a legal sublease does not live in the apartment at all during the term of the sublease, but returns to full time residency when the subtenant moves out at the end of the sublease. A rent stabilized tenant is allowed by law to have a legal sublease for as long as two years duration in any given period of four years of time.

As a matter of law, the apartment remains your primary residence for the duration of the sublease. You are expected to leave behind your apartment furnishings, if you sublease the apartment as furnished.You are entitled to a 10% surcharge above your lease rent when subleasing a furnished apartment.

Any consideration to the idea of subleasing, should be with an attorney guiding you and preparing the sublease and other documents.

It sounds as though you and your girlfriend are both custodial parents and your parental rights should guide all your other decisions.

Good luck.

The answer provided to you is in the nature of general information. The general proposition being that you should try to avoid a bad outcome if you can.