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A non-conventional lifestyle defense doesn't fly in primary resident case.

During his unsuccessful re-election campaign, then Vice President Dan Quayle took issue with single mom Murphy Brown as an exemplar (albeit as a fictional character) of the non-conventional lifestyles that the Vice President found to be at odds with his notion of "family values."

In a recent case, one judge, when confronted with an alleged non-traditional living arrangement, did not opine as to whether or not such arrangement was at odds with his notion of family values; however, the judge, did find the tenant's residential habits to be at odds with his notion of primary residence and continued protection under the Loft Law.

In J.R. Building Associates v. Ellman, the owner asserted that its tenant was not maintaining her 29th Street loft apartment as her primary residence. Rather, the owner claimed that although the tenant did use the 29th Street apartment for work and hobbies, the tenant's primary residence was with her spouse and their seven-year-old child at an apartment on Hudson Street. In response, the tenant asserted that the subject apartment was not only her primary residence, but was also her studio and place of business.

In essence, the tenant asserted that she primarily lived separate and apart from her husband and their son. Instead, she asserted that she primarily resided with a roommate, rather than her family - a roommate who happened to pay approximately 75 percent of the monthly rent.

Judge Bruce Gould noted at the outset that "unconventional lives are not necessarily in violation of primary residence regulations."

The tenant introduced a series of documents that recited the 29th Street address. In addition, the tenant and her husband testified as to their living habits. Specifically, the tenant asserted that, although she does tend to their son at Hudson Street, after she puts her son to bed and has spent some time with her husband, she would, in general, return to 29th Street to work and sleep. Her husband testified that his profession as a writer, and his wife's as an artist, necessitated that they maintain separate spaces.

Belkin Burden Wenig & Goldman, LLP Partner Jeffrey L. Goldman, representing the owner (a company within the Justin Management umbrella), introduced a series of documents at odds with the tenant's claim. For example, the tenant's gym membership agreement listed her home telephone number and address at Hudson Street, whereas the tenant had given the gym the subject 29th Street loft as her business address and telephone only.

Similarly, the Court noted that the tenant's son attended school nearby the Hudson Street apartment and that the tenant's joint tax returns indicated that she and her husband had deducted the rent for the loft as a business expense - the Court noting that a belated attempt to amend this tax filing to remove this deduction only "came about after petitioner's examination before trial of respondent revealed this total business tax treatment of her loft." Judge Gould noted that the belated "amendment of [the tenant's] tax returns shows her distinct shift."

The owner also introduced documents addressing life's normal daily events, as evidencing the tenant's predominant whereabouts. Banking transactions, ATM use, credit card transactions, grocery shopping and gym use all showed the tenant's time being spent near Hudson Street, rather than the 29th Street apartment. Telephone records also showed the tenant receiving nighttime calls at Hudson Street, which the Court found "belie the testimony that [the tenant] was back at 29th Street at night."

Ultimately, after weighing all of the testimony adduced and evidence submitted, coupled with the Court's assessment of credibility, Judge Gould found that "the loft in question is not [the tenant's] primary residence." The Court specifically noted that his ruling was not intended as a commentary upon lifestyle, noting that the Court's intention was not to inhibit the tenant from living as she chooses. However, the Court was compelled to find that:

"She may continue to do as she pleases, but not from this loft's regulated rent."

Indeed, as Judge Gould held, this case should not be viewed as either an indictment of, or even an opinion upon this or any tenant's lifestyle. In reality, although this case presented an unusual set of facts, it ultimately boiled down to that same mundane question that determines most primary residence cases: "Where do you spend most of your time?"

Here, try as she might, the preponderance of the credible evidence would simply not jibe with the tenant's primary residence claim.

Parenthetically, the Court offered no opinion on the proper spelling of "potato" ... or is it "potatoe"?
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Author:Belkin, Sherwin
Publication:Real Estate Weekly
Date:Dec 3, 1997
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