What is the difference between residence and domicile?

| Jun 10, 2021 | Uncategorized |

Many co-ops require that tenant-shareholders use their apartments as their primary residence. This obligation is usually set forth in the proprietary lease, occupancy agreement, or other contracts or regulations governing the use of the Apartment, such as Mitchell-Lama rules promulgated by the Division of Housing and Community Renewal or regulatory agreements between HDFC co-ops and the Department of Housing Preservation and Development.

But what ‘primary residence’ means can be difficult to discern. Often determining whether or not a shareholder is primarily residing in his or her apartment can turn on the distinction between his or her domicile and residence. This has become even more difficult in light of the temporary relocations that have come about during the COVID-19 period.

What do these terms mean?

Although “domicile” and “residence” are often used interchangeably, they do not mean exactly the same thing. They are similar in that they both refer to a property where an individual or family dwells. However, domicile is meant to refer to a place of intended permanent residence and a residence could be another place of dwelling where you might live, and even live with some frequency, but do not intend to make your permanent residence.

How can someone tell the difference?

The basic distinction and rules around this distinction were laid out and have since been well settled, from a case dating back to 1908: Matter of Newcomb, 192 N.Y. 238, 250-251 (1908).

As a legal matter, the principal difference between the two is determined by intention. It doesn’t make a difference how much time in the year someone spends in one dwelling or the other. A person can have multiple residences but can only have a single domicile.

Determining whether a dwelling is a domicile or residence is no small feat. In fact, it is a relatively subjective inquiry.

According to the judge in Matter of Newcomb, “Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place and also an intention to make it one’s domicile.”

It is the intention to make a residence a domicile that distinguishes between the two. It becomes challenging and subjective to make this determination in practice. To simply trust someone’s property status claim at face value would leave the system vulnerable to fraudulent claims. On the other hand, there is no objective way to determine whether or not someone intends to use a property as a domicile.

Examples of relocating while retaining the original domicile location

In the housing context, relocations that allow domicile to remain intact might include:

  • Caring for an elderly relative
  • Relocating for school
  • Fixed-term employment
  • Relocation for the COVID-19 period

However, at a certain point, what is being claimed as a temporary residence could be deemed a domicile. If you are illegally subletting your existing “domicile,” taking long-term employment near your other residence or doing something else that suggests the intention of staying at the other residence long term, it could be deemed a domicile.

If you are dealing with the distinction between your residence and your domicile, talk with an experienced property law attorney like those at Tane Waterman & Wurtzel, P.C. who can help protect your rights.