NEW YORK LAW JOURNAL

When Is a Nursing Home
A Primary Residence?

By Bruce Feffer

PLEASE don't take this little pleasure I have left in my life away from me.

So wrote an 85-year old woman to a Housing Court judge presiding over a summary proceeding in which her landlord was seeking to evict her from an apartment she had lived in for half a century. The landlord claimed the woman was no longer using the apartment as her primary residence and that she was in fact a resident of a nursing home.

The family of the elderly tenant, while conceding that she had only spent three days and two nights at the apartment during the past year, argued that she was not a resident of a nursing home but merely a patient, who continued to view her apartment as home and who had every intention of returning to it.

The apartment, the family contended, remained furnished and unoccupied, maintained by relatives who lived in the same building, awaiting the woman's return.

Clearly, the landlord's interest was in reclaiming a rent controlled apartment that for most of the year stood vacant.

The tenant's family, on the other hand, saw the landlord's legal action as a cruel act of greed and insensitivity against a member of society's most vulnerable class of citizens - the elderly and the infirm.

Does the fact that a tenant leaves her apartment to place herself in the care of a nursing home mean that she has changed her primary residence?

Recently, the Appellate Term, New York County, held that a tenant had still maintained her apartment as a primary residence even though she was confined to a nursing home for approximately one year. (Cohen and Zerenowitz Realty Corp. v. Asero, NYLJ, Nov. 21, 1991, p. 26, col.4.).

The tenant died during the pendency of the appeal. The court cited the fact that the tenant kept her furnishings and personal belongings in the apartment and received mail, including bank statements, at the apartment address. Her tax returns reflected her home address, as well. In addition, testimony was provided to show the tenant's intention not to abandon the apartment or relocate permanently to the nursing home.

In the case of an 82-year-old nursing home patient (Heller v. Joy, NYLJ, Feb. 22, 1984, p.6, col. 1), the Supreme Court, New York County, held that Primary residence is basically a determination of the intention of the tenant and that intention can only be determined by examination of the act of the tenant giving clue to his true subjective purpose.

Even after conceding its uncertainty over whether the tenant, who was recuperating from brain surgery and a stroke among other hardships, was even aware of the court proceedings involving her home, the court found other evidence of her adamant desire to return to her former residence.

The court in Heller pointed to personal possessions left in the apartment (rejecting landlord's claim that this was for storage purposes only) and that fixtures and furniture remained in place. Affidavits of tenants physician and legal representative alleged that the tenant desired to return home. The court concluded that the record did not indicate a clear-cut abandonment of the primary residence to establish another.

Change in Residence

Reaching a different conclusion in Matter of LJM Venture #1 v. Joy (NYLJ, Feb. 27, 1980, p. 10, col.2) the same court found that circumstances such as a vacant apartment, advanced age of tenant (81 years old), and extended stay in a nursing home combined exclusively to establish that a change in primary residence had occurred within the meaning of Rent and Eviction Regulations ...

The court in reaching this conclusion, however, cautioned against an absolutist approach to this issue, stating, a careful examination of the facts and circumstances causing the nursing home move will, of course, be necessary.

A key distinction between LJM Venture #1 and the two cases previously cited, seems to be in the degree to which the elderly tenant has left the subject premises in a condition amenable to return. In contrast to Heller and Cohen and Zarenowitz Realty, the premises in LJM Venture #1 were left completely vacant.

All three cases place importance on evaluating the intent - expressed or apparent - of the tenant to return at some point to their original homes.

Of course, as the court in LJM Venture #1 forecasts, cases on the midpoint of the spectrum will undoubtedly also arise.

Balancing the economic interests of private property owners with those of their elderly tenants suffering from old age and illness, have made these midpoint cases among the most difficult to predict in the primary residence field.

The apparent trend of the courts in favor of giving what some may view as the benefit of the doubt to the elderly and infirm in these kinds of cases, should not lull families and advocates of such tenants into a false sense of security. This may be an area where legislation can help provide some basic criteria to safeguard against tenant abuses while at the same time protecting elderly nursing home patients from losing the last real home most of them will ever know.

NEW YORK LAW JOURNAL
Friday, March 6, 1992