Set Occupancy Benchmarks to Prevent Improper Pass-Ons

Here’s how to keep track of who’s living in an apartment.

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.

To prevent having no say in picking your new tenant, it’s important to be able to determine if a person is entitled to pass-on rights. We’ll go over the statutory requirements for succession rights and discuss how you can keep track of who’s living in an apartment and may later claim rights to an apartment.

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 relative of 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 isn’t limited to any one of the following factors—and in no event would evidence of a sexual relationship between such persons be required or considered:

• 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.

Example: In one case this year, a tenant’s sister-in-law successfully obtained pass-on rights as a nontraditional family member. Although the family member didn’t have intermingled finances or formalized legal obligations, intentions, and responsibilities with tenant, she was able to show the court that she and the tenant had been friends for decades and had lived together for 11 years; they had relied on each other for paying household expenses; they had spent several holidays, family events, and religious events together; and they clearly had considered themselves to be family despite the passing of the tenant’s brother.

Also, after the tenant suffered a stroke, the sister-in-law took care of the tenant’s basic functions, including bathing him, buying groceries, preparing meals, changing bed linens, doing laundry, coordinating the tenant’s doctor’s appointments, medications, and health aide schedules, and running errands for the tenant [1035 Wash. Realty LLC v. Weston: Index No. 2018-1443KC, 2020 NY Slip Op 50629(U), May 2020].

Minimum 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.

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.

Example: In a recent case, a stepson couldn’t prove he lived with a tenant for two years before she died. He had complained to the DHCR that the landlord refused to give him a rent-stabilized renewal lease even though he had succession rights to the tenant’s apartment. The district rent administrator (DRA) initially ruled for him and directed the owner to issue him a renewal lease because he submitted proof that he was the stepson of the prior tenant and had lived with her for at least two years before the tenant died in October 2018.

The owner appealed and won, arguing that: (a) the DRA erred in relying on uncertified birth and marriage certificates; (b) the DRA should have requested tax returns; (c) the agency accepted records not relevant to the time period of two years prior to the tenant’s death; and (d) the DRA should’ve requested additional documents. The DHCR ruled that the occupant failed to demonstrate that he lived in the apartment between Oct. 1, 2016, and Oct. 1, 2018. Occupancy records from 2014 to 2016, and utility bills from 2019, didn’t cover the relevant period. So, the stepson didn’t prove succession rights and his claim was dismissed [Edgecombe Preservation LLC: DHCR Adm. Rev. Docket No. HR410035RV, September 2020].

Establish Occupancy Benchmarks

Most court cases concern whether a relative has met the residency requirement. So before a relative even claims pass-on rights, take steps to help you 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.

The DHCR recently updated 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.” The form can be used by both tenants and owners. It 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.

As an owner, you can also use New York State’s Real Property Law §235-f(5) and §27-2075(c) of the city’s Administrative Code, to demand that a tenant identify any other apartment occupants and their relationship to the tenant, if any. Real Property Law §235-f(5) says, “The tenant shall inform the landlord of the name of any occupant within thirty days following the commencement of occupancy by such person or within thirty days following a request by the landlord.”

And §27-2075(c) of the city’s Administrative Code says on written demand by the owner, “the tenant shall submit an affidavit setting forth the names and relationship of all occupants residing within the dwelling unit and the ages of any minors. In the event of an increase in the number of occupants, the tenant shall advise the owner and, if the owner so demands in writing, the tenant shall submit an affidavit, setting forth the pertinent information regarding such increase in occupancy.”

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 to 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.

Benefit of Written Request Over Form RA-23.5

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.

You should send a written request 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. You can adapt our Model Form: Have Tenants Fill Out Occupancy Statement, below, for this purpose.

Since rent-controlled tenants have no lease, send them this request every two years or whenever you suspect that someone has moved in. The information gathered from the request would be helpful only if the tenant permanently vacates within one or two years of the form.

This information is most helpful in situations in which a relative isn’t listed in any form 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 information was requested. In other words, the written request 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.