Proving Nonprimary Residence with Foreign Tourist Visa

Q I have a rent-stabilized tenant who I suspect may be here on a foreign tourist visa. Would you review the requirements for evicting a rent-stabilized tenant on the basis of nonprimary residence, and give me more information on whether I can show the tenant's immigration status as possible proof?

A For an apartment to remain in its rent-regulated status, the tenant must occupy it as his primary residence. Primary residence is determined by the courts, and they have used the following tests to decide whether a tenant is occupying the apartment as a primary residence:

• Does the tenant file a New York City Resident Tax Return from the apartment's address or show a valid reason for not filing, such as an income below taxable level?

• Does the tenant meet the definition of “resident” for tax purposes, either by maintaining a domicile or residence at the apartment for 183 days of the year?

• What do the tenant's driver's license, voter registration card, or other such documents show as the tenant's address?

• Does the tenant sublet or assign the apartment?

In addition to these tests, a recent court ruling indicates that the court can look at a tenant's immigration status for nonprimary residence purposes. In that case, an owner suing to evict a rent-stabilized tenant for nonprimary residence showed that the tenant was a British national who lived in New York while holding a B2 tourist visa. The owner claimed that, as a matter of law, the tenant could not maintain a primary residence at her New York apartment.

The case eventually went to New York's highest court, which ruled that in the absence of unusual facts, federal law barred the tenant from claiming that the New York apartment was her primary residence. To have a valid B2 tourist visa, a person must have a “principal, actual dwelling place” outside the United States that she “has no intention of abandoning.” Therefore, claiming one's primary residence is in New York while holding a B2 visa is inconsistent [Katz Park Ave. Corp. v. Jagger, October 2008].