Q&A: Proving Non-Resident Status

Q. We have a problem with a shareholder circumventing sublet rules by claiming that the occupant of their unit is a ‘roommate.’ The actual shareholder does not live here, but she shows up occasionally and sits on the stoop to make her presence known as if she is living here. Everyone accepts the ruse. How do we prove non-residency? Others have claimed that an illegal occupant is a sibling. Again, how to disprove? The board is less concerned with illegal sublets than it is with spending money for legal solutions.

— Fed-Up With the Shenanigans

A. “The answer to this question is known in the landlord-tenant courts as a non-primary residence case,” says attorney Martin Kera of the firm Kera & Graubard, which has offices in Manhattan and Hastings-on-Hudson. “The last sentence of the question seems to imply that the board does not want to spend money on legal fees. Most co-op proprietary leases provide for the collection of legal fees from a shareholder. The resolution of this situation will require the expenditure of money. There are companies that specialize in doing non-primary residence searches. The cost is $1,000 to $1,500. They search all public records to see where the shareholder actually resides. The residence used for the filing of New York City income tax returns and voter registration are key. 

“Assuming the search shows that the shareholder has a different primary residence, the next step would be to hire an attorney to commence a holdover proceeding. Proprietary leases usually require service of a notice to cure before commencement of the holdover proceeding. 

“An important adjunct, and also an element of proof, is to install security cameras that show who is going in and out of the building – particularly in and out of the subject apartment. The cameras look like smoke detectors, and the taping system must store the video for a period of time. It cannot be one of those systems that records over the tape every 48 hours. 

“I have assumed that this is a no-doorman building. If you have doormen or perhaps a live in super, you have a witness who can testify about whether the shareholder resides in the building.”

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