It is possible for a person who is an occupant in a rent controlled or rent stabilized apartment, which is leased to a family member, to take over the existing lease after the primary tenant dies or leaves, and to get his or her name on the renewal lease.
1. Legal Action
Landlords often refuse to accept succession claims and will attempt to evict the remaining tenant through a legal action in housing court called a holdover.
2. Requirements for Claiming Succession Rights
a. Period of Occupancy
Two Years In Most Cases
The person seeking to takeover the apartment must have lived in the apartment for two years.
One Year In Certain Circumstances
• If the person seeking to takeover the apartment is disabled or over 62 years of age then the period of co-occupancy is only one year.
• A “disabled person” is defined as a person with an impairment which results from anatomical, physiological or psychological conditions, other than addiction to alcohol, gambling or any controlled substance, which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques, and which substantially limit one or more of such person’s major life activities.
Other Periods Of Time
A person is also entitled to succession rights if the tenancy or relationship was less than two years, but the person moved into the apartment with the named tenant when the tenant first moved in or lived in the apartment since the beginning of their relationship with the tenant.
Some Periods Of Absence Will Not Break A Continuous Period of Occupancy
An absence for one of the following reasons will not break a continuous period of occupancy:
• court ordered relocation;
• enrollment as a full-time student;
• hospitalization for medical treatment;
• engaged in active military service;
• temporary relocation due to employment; or
• such other reasonable grounds that shall be determined by the Division of Housing and Community Renewal (DHCR) upon application.
• In order to ensure that the landlord is aware of all persons living in the apartment who may be entitled to succession rights or protection from eviction, a tenant may wish to submit to the landlord a notice listing all additional occupants.
• If the person seeking to claim succession rights has not lived in the apartment for a continuous period of two years prior to the tenant’s death or departure, but does not fall within the definition of a disabled person because they have an addiction to alcohol, gambling or any controlled substance, consider whether they have an underlying psychological condition or have been hospitalized, thereby reducing the requirement for two years of continuous occupancy.
b. Familial Relationship
• The definition of ‘family member’ includes traditional and non-traditional family members.
• A traditional ‘family member’ is defined as a husband, wife, son, daughter, stepson, stepdaughter, father, mother, stepfather, stepmother, brother, sister, grandfather, grandmother, grandson, granddaughter, father-in-law, mother-in-law, son-in-law or daughter-in-law of the tenant.
• Aunts, uncles, nieces, nephews, and cousins are not included in the definition of ‘family member’. If they wish to have succession rights, they must meet the standards of non-traditional family members.
• A non-traditional ‘family member’ is defined as any other person residing with the tenant in the apartment as a primary resident who can prove emotional and financial commitment and interdependence with the tenant. This part of the definition captures unmarried, cohabitating, heterosexual and homosexual couples. It could also cover an aunt who raised her niece as a daughter and senior citizens or disabled persons living together as a family unit with or without romantic involvement.
Proof of Familial Relationship
A non-traditional family member must be able to prove “emotional and financial commitment” to the tenant. In determining whether an emotional and financial commitment exists, a court may consider:
• longevity of the relationship;
• sharing of or relying upon each other for payment of household or family expenses;
• intermingling of finances;
• engaging in family-type activities together;
• formalizing of legal obligations, intentions and responsibilities to each other through such things as wills, powers of attorney, personal relationship contracts and domestic partnership declarations;
• holding themselves out as family members through words or actions;
• regularly performing family functions, such as caring for each other or each other’s extended family and/or relying upon each other for daily family services; and
• any other pattern of behavior, agreement or other action, which evidences the intention to create a long term, emotionally committed relationship.
Evidence of a sexual relationship between such persons is not required or considered.
Succession Rights in Divorce
Provided the cohabitation requirement is met, if the lease for a rent-regulated apartment is in one spouse’s name, it is nevertheless possible that the other spouse has a right to remain in the apartment after the couple divorce. However, it is important that the ex-spouse does not remain in the apartment after the divorce is final because the individuals would then be roommates, to whom succession rights are not automatic.
3. Claiming Succession Rights
• Succession rights can only be claimed once the primary tenant dies or vacates the apartment.
• Assuming the landlord does not institute a holdover action, the tenant claiming succession should send a letter to the landlord explaining that the primary tenant has vacated the apartment and that he or she would like to sign the next renewal lease. If the primary tenant has died, the death certificate should also be included with the letter.
• A new lease is signed when the current lease is up for renewal.
• A person with succession rights stands in the shoes of the tenant who died or vacated the apartment and should only have to pay the same rent that the old tenant would have paid.
• In rent stabilized apartments, the landlord can only increase the rent when the lease is renewed and can only charge the legally allowed increase that the old tenant would have been charged when the lease was renewed. The landlord is not entitled to a vacancy increase.
• However, the landlord is entitled to collect a vacancy increase from the next family member, called the second successor, entitled to remain in possession or receive a renewal lease under the rules of succession. This rules applies to both rent stabilized and rent controlled apartments.
First Succession Claim
Arthur lives in a rent-stabilized apartment with his daughter Beatrice. Under the current lease, which is due to expire on January 31, 2012, the rent is $1000. Both Arthur and Beatrice have been living in the apartment for five years, however Beatrice has been at an out-of-state college for the last year. Arthur died on November 25, 2011. Would Beatrice be entitled to remain in the apartment and receive a renewal lease on February 1, 2012?
Beatrice’s absence from the apartment while enrolled as a full-time college student does not break the requisite two-year period of continued occupancy prior to Arthur’s death, which is a pre-requisite to remaining in the apartment following Arthur’s death. Furthermore, as the first successor, Beatrice is entitled to receive a renewal lease on February 1, 2012, without paying any vacancy increase, but she will nevertheless have to pay the annual rent increase mandated by law, which is 7.25 percent for a two-year lease. Thus, the new rent will be $1,072.50 ($1,000 + $72.50 (7.25% of $1000) = $1,072.50).
Second Succession Claim
After her father’s death, Beatrice decides to transfer to a college in New York City, so that she can be closer to her extended family. On July 31, 2012, Beatrice and her same-sex partner, Clarice, marry. On August 1, 2012, Clarice and Clarice’s teenage son, Daniel, moves into Beatrice’s apartment. However, Beatrice dies a couple of months later. Would Clarice be entitled to remain in the apartment and receive a renewal lease on February 1, 2014?
As a result of the Marriage Equality Act, Clarice falls within the definition of a traditional family member of Beatrice. Despite the fact that Clarice has not lived in Beatrice’s apartment for two years at the time of Beatrice’s death, Clarice can remain in the apartment and receive a renewal lease because she has lived in the apartment since the inception of her marriage to Beatrice. Since, Clarice is the second successor to the apartment, the landlord can charge her a vacancy increase when the lease is renewed. Therefore, if Clarice chooses a two-year lease, the legal rent would increase by 20% to $1,287.00 ($1,072.50 + $214.50 (20% of $1,072.50)).
Third Succession Claim
Clarice and Daniel continue to live in the apartment for another three years. Clarice decides to permanently move to San Francisco. Is Daniel entitled to remain in the apartment and receive a renewal lease?
Daniel is defined as a family member of Clarice and has lived in the apartment for the requisite two years before Clarice’s departure. Therefore, he can remain in the apartment and is entitled to a renewal lease, but is not required to pay the vacancy increase because he is the first successor to Clarice, who received a vacancy increase.