How to Evaluate Succession Rights Claims to Rent-Regulated Apartments

When the tenant of a rent-controlled or rent-stabilized apartment dies or moves out, there's often someone still living in the apartment who claims to have “pass-on” or succession rights to it because he or she is the tenant's relative or has a family-type relationship with the tenant. If the claim is true, the relative of a rent-controlled tenant can stay on in the apartment as a rent-controlled tenant in his or her own right. The relative of a rent-stabilized tenant is entitled to a renewal lease in his or her own name.

It's important to be able to determine if a person is entitled to pass-on rights. Pass-on rights prevent you from decontrolling a rent-controlled apartment. Also, they can prevent you from collecting a vacancy increase and/or a new equipment rent increase on a rent-stabilized apartment. In addition, for either type of apartment, you have no say in picking your new tenant.

We'll tell you how to evaluate if a relative is entitled to take over a tenant's apartment. We'll also give you steps to take to prevent relatives from getting pass-on rights when they're not legally entitled to them, including steps to help you if you must sue to evict a relative who's wrongly claiming pass-on rights.

Two Requirements for Pass-Ons to Relatives

Both the Rent Stabilization Code (RSC) and the Rent and Eviction Regulations (RER), which cover rent-controlled apartments, set two requirements for a relative to be entitled to pass-on rights. He or she must:

• Be a “family member” of the tenant who moved out or died; and

• Meet residency requirements set by the RSC or RER.

Generally, if these two requirements aren't met, the relative has no right to stay on in the apartment after the tenant dies or moves out. You don't have to give the relative of a rent-stabilized tenant a renewal lease—or even let him stay in the apartment until the lease ends. And you don't have to let a rent-controlled tenant remain in the apartment as a rent-controlled tenant in his own right.

Who's a 'Family Member'?

To qualify for pass-on rights, the relative must qualify as a “family member” of the tenant who moved out or died. “Family member” is defined by law as either 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.

The definition of “family member” also includes any other person who can establish a family-type relationship with the tenant. This is done by showing an emotional and financial commitment and interdependence between the person and the tenant. The determination is not limited to any one of the following factors:

• Longevity of the relationship;

• Sharing of or relying upon each other for payment of household or family expenses, and/or other common necessities of life;

• Intermingling of finances as evidenced by, among other things, joint ownership of bank accounts, personal and real property, credit cards, and loan obligations, and sharing a household budget for purposes of receiving government benefits, etc.;

• Engaging in family-type activities by jointly attending family functions, holidays and celebrations, social and recreational activities, etc.;

• Formalizing of legal obligations, intentions, and responsibilities to each other by such means as executing wills, naming each other as executor and/or beneficiary, granting each other a power of attorney and/or conferring upon each other authority to make health care decisions each for the other, entering into a personal relationship contract, making a domestic partnership declaration, or serving as a representative payee for purposes of public benefits, etc.;

• Holding themselves out as family members to other family members, friends, members of the community or religious institutions, or society in general, through their words or actions;

• Regularly performing family functions, such as caring for each other's extended family and/or relying upon each other daily for family services; or

• Engaging in any other pattern of behavior, agreement, or other action that shows the intention of creating a long-term, emotionally committed relationship.

EDITOR'S NOTE: As a result of the same-sex marriage bill that Governor Cuomo signed into law in June, same-sex partners may now simply choose to get married as opposed to going through the process of having to prove that a partner is a nontraditional family member and entitled to pass-on rights. Also, owners may find that gay tenants who had been domestic partners previously are now married and are asking to be added to a lease as a spouse. Now, you are required to do so. Before the new law, New York courts had ruled that registered domestic same-sex partners don't have a fundamental right to a marriage license and that RSC Section 2522.5(g) requires a landlord to add only a husband's or wife's name to a lease.

Residency Requirement

Besides being a family member, the relative must have lived with the tenant in the apartment as their primary residence before the tenant either died or permanently moved out:

• For at least two years; or

• From the beginning of their family relationship; or

• From the beginning of the tenancy.

Example 1: A tenant moves into an apartment in 1998. Her granddaughter moves into the apartment in 2007 and lives there with the tenant until the tenant's death in 2010. The granddaughter is entitled to pass-on rights. A granddaughter is a family member. And she's lived in the apartment as her primary residence for at least two years.

Example 2: A tenant moves into an apartment in 2007. He gets married in 2009, and his wife and mother-in-law immediately move in with him. The tenant and his wife move out in 2010, but the mother-in-law remains. The mother-in-law is entitled to pass-on rights. A mother-in-law is a family member. And she has lived in the apartment as her primary residence since becoming a family member of the tenant (when her daughter married him).

According to attorney William Neville of Mitofsky Shapiro Neville and Hazen LLP, it's important for owners to note that the two-year period of inquiry is from the date the tenant of record permanently vacates the apartment. So in order to claim succession rights, the tenant of record must die or voluntarily surrender the apartment. There have been a number of cases in which the courts have determined that the tenant did not occupy an apartment as a primary residence. But this fact did not mean that the tenant had permanently vacated the apartment, and thus, the occupant couldn't claim pass-on rights. The tenant may have continued to sign renewal leases, paid the rent, or stayed in the apartment sporadically.

Shorter co-occupancy for seniors and disabled. The co-occupancy requirement is shortened to one year if the family member is a senior citizen or is disabled. The RCR and RER define a senior citizen as a person 62 years of age or older. They also define a disabled person as someone who has an “impairment which results from anatomical, physiological, or psychological conditions other than addiction to alcohol, gambling, or controlled substance, which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques and which are expected to be permanent and which prevent such person from engaging in any substantial gainful employment.”

Continuous occupancy required. The relative must have lived in the apartment continuously for the legally required amount of time. He can't simply move in and out of the apartment at his convenience and still be entitled to a renewal lease after the tenant leaves.

However, if a relative is merely absent from the apartment, the absence isn't considered an interruption in residence if the relative was absent for one of the following reasons:

• On active military duty;

• Enrolled as a full-time student;

• Not living in the apartment “pursuant to a court order not involving any term or provision of the lease—in other words, in jail;

• Job requires a “temporary relocation” from the apartment;

• In the hospital for medical treatment; or

• For any other “reasonable grounds” that the Division of Housing and Community Renewal (DHCR) can determine, if the family member applies to the DHCR.

For example, suppose tenants and their teenage son move into an apartment in 2005. In 2006, the son moves to Boston to attend college as a full-time student. In 2010, he graduates and moves back to the apartment. In 2011, the tenants move to a larger apartment. The son is entitled to a renewal lease. He's a member of the tenants' family. Although he hasn't lived in the apartment continuously since the tenants moved in 2005, his four-year absence doesn't affect his right to a renewal lease because he was enrolled as a full-time student during his absence. Under the second exception listed above, his four years at college don't count as an interruption in his residence.

In one case, a son couldn't prove a temporary absence. An owner sued to evict a rent-controlled tenant's son after the tenant died. The son claimed pass-on rights. The trial court ruled for the owner. The tenant's son appealed and lost. The son claimed that he primarily resided with the tenant at the apartment for at least two years before she died. But the owner proved that the elderly tenant shared the apartment with her home health aide for at least two years before she died. At the same time, the tenant's son lived and worked in France for six years before the tenant died. He failed to prove that this was a temporary interruption of an ongoing residency in the apartment with the tenant [SP 10 Downing, LLC v. Gazzoli, May 2011].

In another instance, a judge ruled that a grandson's prison term was a temporary absence and didn't prevent pass-on rights for him. An owner had sued to evict a rent-controlled tenant's grandson after the tenant died. The grandson claimed that he had succession rights to the apartment. He had lived there as his primary residence for more than 27 years. The owner argued that there could be no such claim because the grandson was in jail from 2005 until 2009, when the tenant died. The court ruled for the grandson and dismissed the case. A tenant doesn't lose his primary residence status due to a temporary absence, and a definite prison term is a temporary absence. When he went to jail, the tenant's apartment was the grandson's residence, so it remained his residence [Kelly Mgt LLC v. Soltero, February 2010].

Proving Residency/Nonresidency

Most court cases concern whether a relative has met the residency requirement. It's up to the relative claiming pass-on rights to present proof of residency. Usually, the relative must submit various official documents showing the tenant's address as his or her own during the one- or two-year period before the tenant died or moved out.

In one case, a tenant's son claimed that he had lived with the tenant and was entitled to pass-on rights. He submitted to the District Rent Administrator copies of a letter from Social Security addressed to him at the apartment on Sept. 25, 2007; his birth certificate; bank statements for an account of his mother's in trust for him from 2003; and two mailing envelopes addressed to him at the apartment. However, one of these was postmarked in 1999, and the other postmark was illegible. The DHCR ruled against the tenant's son. These documents were insufficient to prove that the son lived with the tenant for two years between February 2004 and February 2006, when the tenant passed away [Boria: DHCR Adm. Rev. Docket No. VI610052RT, December 2007].

A relative will usually be able to come up with some evidence to support his or her claim. So, even though the relative has the burden of proof in court, it's a good idea for you to have evidence to show the court that the relative hasn't met the residency requirements. Here's the type of proof owners have used to win their pass-on cases.

Evidence that the relative lived elsewhere. Evidence indicating that the relative lived elsewhere while he was supposed to be living in the apartment with the tenant can be very persuasive. Usually, this evidence consists of official documents showing the relative's other address. In one case, an owner showed that the family member was herself the tenant of another apartment in the same building as the tenant. The court ruled that she wasn't entitled to pass-on rights to the tenant's apartment after the tenant died [138th Street Properties, LLC v. Patrick, March 2010].

In another case, an owner was able to show that a supposed apartment occupant lived in New Jersey and, therefore, had no pass-on rights to the apartment. During the relevant period, the occupant owned a house in New Jersey. His wife and children lived there, he received mail there, the Social Security Administration listed his address there, he had a New Jersey driver's license and phone number, and the apartment phone was listed in someone else's name [Tang v. HPD, May 2006].

Statements and testimony from building employees. Ask your building employees such as your superintendent or doormen if they've seen anyone besides the tenant who seems to be living in the apartment. If not, you can have the employees submit sworn statements and testify in court that they didn't see the relative at the building. This could help your case.

One owner's case was helped by using a building superintendent's testimony. An occupant claimed that she had a nontraditional parent-child relationship with a tenant. Her parents died when she was a child. At the time, the tenant lived with the occupant's aunt, and the occupant considered the tenant and her aunt to be her parents. However, the building super lived on the tenant's floor and said she never saw the occupant at the building on a regular basis until a few months before the tenant died. The court ruled for the owner, and the owner was allowed to proceed with eviction [1106 College Ave. HDFC v. Farmer, December 2010].

Statements and testimony from other tenants. If you can, get the tenant's neighbors to submit statements or testify in court that they didn't see the relative at the apartment. For example, one owner successfully used the testimony of a next-door neighbor to help prove that the tenant's daughter hadn't lived in the apartment with the tenant. Although this case also involved a relative who wasn't technically a “family member,” the case hinged on whether the relative met the residency requirement. The testimony along with other evidence proved that the tenant primarily resided in another country and the daughter had not lived in the apartment with the tenant for the requisite two years [Santorini Equities, Inc. v. Picarra, December 2006].

Take Two Steps Before Tenant Vacates to Prevent Pass-On

Before a relative even claims pass-on rights, there are steps you can take to protect yourself in the event a claim is later made. These steps can help you prove that the relative isn't entitled to pass-on rights. They're intended to determine who's in the apartment and the person's move-in date. A relative's pass-on right depends largely on when he or she first moved into the apartment. There's no right if the relative hasn't lived in the apartment for two years, unless he or she moved in at the same time as the relative or at the time the family relationship began.

It's crucial for you to get “benchmarks of occupancy” so you'll know at all times who's living in an apartment and when they moved in. When a tenant dies or moves out, you'll be able to determine whether the remaining relative is entitled to stay. Here are some suggested steps.

Get information from lease applications. With future tenants, use your lease application to find out who will live in an apartment. “Owners should ask a prospective tenant to list on an application all occupants and their relation to the prospective tenant,” says attorney Peter Schwartz of Graubard Miller. This will help you know who's moving into the apartment with the future tenant and their relationship. Also, if a relative isn't listed and later claims a right to the apartment, you can use this document to show that he or she wasn't in the apartment as of the date the tenant moved in.

Use laws to get information about apartment occupants. To get information on who's living with the current tenant, one option is to use DHCR Form RA-23.5 entitled “Notice to Owner of Family Members Residing with the Named Tenant in the Apartment Who May Be Entitled to Succession Rights/Protection from Eviction” to inform you about occupants. The form is designed to be used by tenants, but owners may use it too, says Schwartz. The notice asks the tenant to provide the names of all occupants in the apartment, the date of commencement of each occupant's primary residence, the family relation to the tenant, if any, and whether the occupant is a senior citizen or disabled. The only limit with this form for owners of rent-stabilized apartments is that it may not be sent to a tenant more than once in any 12-month period.

You can also use Real Property Law §235-f(5) and §27-2075(c) of the city's Administrative Code. These laws give you the right to demand that a tenant identify any other apartment occupants and their relationship to the tenant, if any. If the tenant doesn't respond to your demand, you can seek the tenant's eviction. The state law requires tenants to respond to your request for the names of any occupants who occupy the rental unit within 30 days of your request. Although there's no requirement that you put your request in writing, you may want do so. If the tenant refuses to give you occupant information, you'll have a record of your request if you decide to terminate the tenancy.

One advantage of a written request over the form is that the written request won't have explicit instructions regarding succession rights. A concern is that the form's instructions may encourage tenants to give dishonest answers about how long an occupant has lived in the apartment or about the tenant's relationship to the occupant to qualify for succession rights. For this reason, you may want to use the letter we've provided, Model Letter: Ask Tenant if Others Are Living in Apartment.

How often should you send this letter to the tenant? At a minimum, send it at the start of the tenant's first lease. You can then compare the tenant's response to what he put on his application to see if there are any changes. Then send it on each lease renewal and any time you suspect that someone has moved into the apartment. Since rent-controlled tenants have no lease, send them this letter every two years or whenever you suspect that someone has moved in. The information gathered from the notice would be helpful only if the tenant permanently vacates within one or two years of the form or letter.

This information is most helpful in situations in which a relative isn't listed in any notice but later claims a right to the apartment. An owner could use the form or tenant's responses from previous years to show that the relative wasn't in the apartment as of the date the tenant moved in or around the date the notice was requested. In other words, the notice would serve as sort of a benchmark of occupancy and help the owner decide whether or not to pursue an eviction when someone claims pass-on rights.

If the owner had no notice of the person claiming succession rights, then this would be cause for further investigation. But if the owner knew of the occupant, then the owner could determine that it was a valid claim quickly.

Get Information from Person Claiming Pass-On Rights

When someone claims pass-on rights as a relative after the tenant dies or moves out, send that person our Model Letter: Ask for Proof to Back Up Pass-On Claims. You'll want information that the person qualifies as a “family member” and also meets the residency requirements for a pass-on. This information will help you evaluate the pass-on claim.

By sending this letter, you let the person know you'll check out his or her claim. The letter might scare off someone who really has no right to take over the apartment. Sometimes people hope you'll just give them the apartment without asking too many questions.

If the person claiming pass-on rights sends the information you ask for, it may show that the person doesn't meet the requirements. You'll have some of the information you need to get the person evicted. And if the information shows that the person meets the requirements to get pass-on rights, at least you'll avoid going to court and wasting your money on a losing case.

Note that our Model Letter doesn't ask for specific documents or advise the person what's needed to prove pass-on rights. For example, the letter asks for proof that the person lived with the tenant for “the requisite period of time.” It says nothing about living in the apartment with the tenant for at least two years before the tenant moved out.

Someone making pass-on claims may not know about the two-year requirement and may admit living in the apartment for only one year. But if your letter explains that he must have lived in the apartment for at least two years, you can be sure the person will claim just that.

How to Use Information You Get from Occupant

You and your attorney can use the information you get from the person claiming pass-on rights to decide your next move.

If the proof shows that the person doesn't meet the requirement for pass-on rights, you may decide to go ahead and start an eviction lawsuit. If the person has some proof that he meets the requirements, you may want to hire a private investigator before launching an eviction lawsuit—or deciding not to. Your attorney can help you analyze the information you've gotten and decide if hiring a private investigator is worthwhile.

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