Use 11-Point Checklist to Evaluate Roommate’s Succession Claim

Suppose a tenant’s roommate asks you for a renewal lease in her own name on a rent-stabilized apartment or for the right to continue living in a rent-controlled apartment after the tenant dies or moves out. The roommate claims that she’s entitled to pass-on rights to the apartment, based on her family-type relationship with the tenant. The roommate is either unrelated to the tenant or not one of the relatives automatically considered a “family member” for purposes of getting pass-on rights.

Are you obligated to give in to the roommate’s claim? Or, if you refuse the request and the roommate doesn’t move out, can you successfully fight the roommate’s claim in court and evict her?

This scenario highlights an issue raised by New York State’s enactment of the “roommate law,” which acknowledged the rise of nontraditional living arrangements. Under what circumstances may these roommates also have the right to stay on should the tenant move out or die?

This question was particularly pertinent for gay partners who moved into rent-regulated apartments after the enactment of the roommate law. Fortunately, for gay partners who married after Governor Cuomo signed the Marriage Equality Act in June 2011, succession rights aren’t an issue. Rent Stabilization Code Section 2522.5(g) provides that a tenant shall have the right to have his or her spouse, whether husband or wife, added to the lease or any renewal thereof as an additional tenant where said spouse resides in the housing accommodation as his or her primary residence.

That means that, with the legalization of same-sex marriage in New York, tenants who marry their same-sex partners are entitled to add their spouse as a tenant to the rent-stabilized lease. If a tenant requests that a same-sex spouse be added to the lease and furnishes a New York marriage certificate, and proof of joint primary residence, an owner is required to add the same-sex spouse to the lease.

But there are other situations in which succession rights may be invoked for a nontraditional family-type relationship. For example, partners may choose to not formally marry. Or as in one case, an ex-boyfriend’s son successfully claimed succession rights when the tenant died. The occupant’s father lived in the apartment with the tenant at one time, and the occupant moved in with them when he was 14. When the couple’s relationship ended, the occupant remained close to the tenant, and later moved back in with the tenant to care for her during her illnesses and until she died [2025 Walton Assoc. LLC v. Arroyo, February 2012].

To help you evaluate your situation, we’ve created a checklist based on the 11 factors the courts consider. The factors hinge on how long the roommate has lived in the apartment with the tenant and the nature of the roommate’s relationship to the tenant. Here’s what you should know.

Pass-on Basics

To get pass-on rights, the roommate must meet two qualifications. First, the roommate must meet a residency requirement—that is, she must have lived in the apartment with the tenant for a minimum length of time.

Second, the roommate must be a “family member” of the tenant as defined by the Rent Stabilization Code (Code), which applies to rent-stabilized apartments, and the NYC Rent and Evictions Regulations (rent control regulations), which apply to rent-controlled apartments. The Code and rent control regulations list certain relatives who are automatically considered “family members” for this purpose. Any other roommate—whether unrelated to the tenant or a relative not on the list—must show that she is a family member because she had a nontraditional “family-type” relationship with the tenant. The Code and rent control regulations set similar criteria for deciding whether a family-type relationship exists.

11-QUESTION EVALUATION CHECKLIST

To help evaluate the roommate’s claim, you’ll need to know how long the roommate really lived in the apartment and the nature of her relationship with the tenant. You’ll probably need to hire a private investigator to get this information. Once you have the private investigator’s information, you can also ask the roommate to give you any documents she has that show her relationship with the tenant (for example, documents showing a joint bank account, insurance policies, etc.).

Your next step, with your attorney’s help, is to evaluate the information you’ve gotten. Answering the following 11 questions will help you determine if you have a strong case against the roommate, or if the roommate will be able to prove that she had a family-type relationship with the tenant and is entitled to pass-on rights.

Note that, if the answer to Question #1 is yes, the rest of the checklist doesn’t apply to your situation. Also, if the answer to either Question #2 or #3 is no, you needn’t go any further with the checklist. The roommate isn’t entitled to pass-on rights, because she hasn’t met the residency requirement.

With Questions #4 through #11, the more yes answers you have, the better the roommate’s chance of keeping the apartment. If the answers to those questions are mostly no, you probably have a good chance of evicting the roommate.

1. Is the roommate automatically considered a family member without having to prove that she had a nontraditional family relationship with the tenant (see “Relatives Who Are Automatically ‘Family Members,’” below)?

[ ] YES [ ] NO

If yes, this checklist doesn’t apply to you. The roommate needn’t prove that she had a nontraditional family relationship with the tenant.

2. Before the tenant moved or died, did the roommate and tenant maintain the apartment as their joint primary residence either (a) for at least two years; (b) from the beginning of the “family-type” relationship; or (c) from the beginning of the tenancy?

[ ] YES [ ] NO

It’s up to the roommate claiming pass-on rights to present proof of residency. If the roommate can’t show that he lived with the tenant for the required amount of time before the tenant died or moved out and that the apartment was the roommate and tenant’s joint primary residence, it doesn’t matter what type of relationship he had with the tenant. He won’t be able to get the apartment.

Example: An owner sued to evict the remaining occupants of a rent-stabilized apartment after the tenant vacated. The occupants claimed that they were family members entitled to succession rights. The court ruled for the owner after documents were produced during pretrial questioning, finding no need for a trial. It was undisputed that the tenant moved out in 2009. Her son and daughter-in-law provided a 2009 marriage certificate; the son’s birth certificate; redacted face pages of federal tax returns for 2007, 2008, and 2010; W-2 forms for 2006, 2007, 2008, and 2009; redacted NY State income tax returns for 2006, 2007, 2008, and 2010; IRS correspondence dated 2008, 2009, and 2010; and the son’s NY State driver’s license dated Feb. 11, 2008. The marriage certificate and 2008 tax return listed an address other than the tenant’s apartment as the couple’s address. Their attempt to explain away the discrepancy wasn’t credible. The son and daughter-in-law also failed to present sufficient documents tying them to the apartment. Notably absent were 2009 tax returns and other records that would show that they lived in the apartment with the tenant during 2008 and 2009. The documentation in fact suggested that they had another address during this time [Mavis Realty LLC v. Miller, February 2013].

A roommate may be able to come up with enough evidence supporting his residency claim to put the onus on you to disprove it. So, even though the roommate has the burden of proof in court, it’s a good idea for you to have evidence to show the court that the roommate hasn’t met the residency requirement. This evidence usually consists of official documents (for example, tax returns) showing another address for the roommate.

3. Was the tenant living somewhere else while the roommate was in the apartment?

[ ] YES [ ] NO

Sometimes, the person who claims to have been a roommate lived in the apartment while the tenant lived someplace else. In this situation, the “roommate” can’t get pass-on rights because she didn’t live in the apartment together with the tenant.

Example: A woman claimed that she had a nontraditional family relationship with the tenant and was entitled to succession rights. But she rented another rent-stabilized apartment in Manhattan throughout the time that she claimed to have lived with the tenant. She even renewed the lease to the other apartment after the tenant died. In addition, her tax returns, driver’s license, voter registration, and banking and credit card statements all listed the other apartment as her address. Therefore, she didn’t prove a nontraditional family relationship [Caru, LLC v. Ratus, February 2007: NYLJ, 2/27/07, p. 31, col. 2 (App. T. 1 Dept.)]

4. Did the roommate have a lengthy relationship with the tenant?

[ ] YES [ ] NO

The longer the relationship, the stronger the roommate’s case. But courts won’t award pass-on rights based on this factor alone. The relationship between the roommate and the tenant must also be characterized by an in-depth emotional and financial commitment.

Example: In one case, the occupant lived with the tenant for 35 years as a nontraditional family member. In addition to the length of the relationship, he was able to show that he had joint investment accounts with the tenant, and she left a substantial portion of her estate to him. The tenant also left $5,000 to the occupant’s sister. The tenant’s two children and her grandchild submitted sworn statements confirming that the tenant and occupant had a long-term relationship and appeared as a couple at family functions. The tenant’s grandchild considered the occupant his grandfather. And pictures of the couple at many family gatherings were also submitted to the court. The occupant submitted substantial proof that he had lived with the tenant as a nontraditional family member for many years. And so he was entitled to remain as a rent-controlled tenant [Melohn v. Franklin, December 2001].

5. If the roommate and the tenant had more than a few financial assets, did they intermingle their finances? For instance, did they share joint bank accounts, credit cards, and loans, and own personal and real property together?

[ ] YES [ ] NO

Courts will consider how the tenant and roommate managed their finances. They’ll consider if there was genuine intermingling of finances. If finances, such as bank accounts, aren’t shared, you’ll have an easier time showing that there was no family-type relationship, even if the roommate and tenant seemed to have an otherwise close relationship.

Example: In one case, a girlfriend wasn’t able to prove a nontraditional family relationship. She claimed that she lived with the tenant in a nontraditional family relationship and that he intended to marry her. The trial court ruled for the owner. She claimed that the tenant gave her money to deposit into her accounts to pay household bills, but this was insufficient to demonstrate the sharing of household and other necessary expenses, or the intermingling of finances. There was insufficient proof of any domestic partnership [Jackson Surrey 35th LLC v. Litvinova, April 2011].

6. Did the roommate and tenant share or rely upon each other for paying household or family expenses?

[ ] YES [ ] NO

If so, this is a sign that they did have a family-type relationship.

7. Did the tenant and roommate engage in family-type activities, such as social and recreational activities, family events, and holiday celebrations?

[ ] YES [ ] NO

The more of these activities shared by the tenant and roommate, the better the roommate’s case.

8. Did the tenant and roommate formalize their legal obligations and intentions toward each other? For example, did each name the other as executor and/or beneficiary in a will, or grant the other authority to make health care decisions?

[ ] YES [ ] NO

Courts often use this factor to distinguish a close friendship (where no pass-on rights are warranted) from a true family-type relationship.

 9. Did the tenant and roommate hold themselves out as family members to others through their words or actions?

[ ] YES [ ] NO

If the roommate can get people to testify at trial that he and the tenant presented themselves as family members, this will help the roommate prove that he’s entitled to pass-on rights.

Example: An owner sued to evict an apartment occupant after the rent-stabilized tenant died. Witnesses testified that they’d observed the occupant caring for the tenant during the tenant’s illness. And the occupant testified about preparing meals at the apartment and spending holidays with the tenant. A friend also testified that he visited the tenant and occupant as a couple in the apartment on a number of occasions since the 1980s. The court ruled that the occupant had demonstrated that he was a nontraditional family member entitled to pass-on rights. He presented sufficient proof that his life was intertwined with the tenant’s in a family relationship, and that he lived with the tenant in the apartment as his primary residence for at least two years before the tenant died [Lamarche v. Miles, November 2005].

10. Did the tenant and roommate regularly perform family tasks, such as looking after each other and each other’s extended family members?

[ ] YES [ ] NO

If the tenant and roommate cared for each other as family members would, the court will be more likely to rule that the roommate and tenant shared a family-type relationship.

Example: A deceased tenant’s nephew had lived with the tenant since 1979 and claimed to have a family-type relationship. The evidence proved there was a loving, family-type relationship where the tenant treated her nephew like a son. He moved in with her when he was 17 and on the verge of being sent to a group home. For almost 30 years, the tenant and her nephew shopped, traveled, attended events, and performed household chores together. The nephew paid for some household expenses. The nephew took care of the tenant after she retired from working and became aged and infirm. The nephew was the tenant’s Social Security representative payee. And when the nephew received public assistance for some period, payments were sent to the tenant. The nephew and other witnesses testified believably about his close relationship with the tenant, and the owner presented no proof to the contrary [Fort Washington Holdings LLC v. Abbott, April 2010].

11. Does the roommate have documents to support his claim?

[ ] YES [ ] NO

The roommate claiming pass-on rights should be able to present some documentary proof (for example, financial documents, insurance policies) to support her claim that the roommate and the tenant treated each other as family members. Courts will be reluctant to award pass-on rights without this evidence.

Example: In one case, an owner sued to evict the apartment occupant after the rent-stabilized tenant died. The court eventually ruled for the owner. The tenant never stated on any documentation that the occupant lived in the apartment. The manager saw no indication that anyone else lived in the apartment during a 2006 visit, and the tenant’s bank account was held solely in his name. Also, the occupant also presented no documentation to support her claim, and no one submitted any sworn statement supporting her claim [1106 College Ave., HDFC v. Farmer, Dec. 2010].

> Relatives Who Are Automatically “Family Members”

Here’s a list of relatives who are automatically considered “family members” of a tenant. If one of these listed relatives remains in an apartment after a tenant dies or moves out, the relative doesn’t have to prove any special “family-type” relationship with the tenant to keep the apartment:

• 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; and
• Daughter-in-law