Use Witnesses to Block Pass-Ons to Family Members

When you sue to evict a tenant’s family member who claims to have pass-on rights to the apartment after the tenant dies or moves out, you should try to get witnesses to testify that the family member didn’t live at the apartment. Having witnesses will bolster your case. And, as various court decisions show, witnesses could make the difference in whether the court will allow you to evict the family member.

Residency Requirement for Pass-On Rights

The fundamental issue of every pass-on case is whether the family member lived with the tenant in the apartment for the required period of time. To qualify for pass-on rights, the family member must show that, before the tenant died or permanently moved out, he lived with the tenant in the apartment as his primary residence:

• For at least two years (one year if the family member is disabled or over 62 years of age); or
• From the beginning of their family relation; or
• From the beginning of the tenancy.

It’s up to the family member claiming to have pass-on rights to prove that he has met these requirements. The family member will usually have some evidence to prove his claim. Typically, this evidence will be in the form of various official documents showing the tenant’s address as his own. This evidence may also be in the form of witness testimony. You’ll then have to come up with your own evidence to prove that the family member didn’t live in the apartment.

Some of the strongest evidence you can present to the court is testimony from witnesses showing that the family member didn’t meet the residency requirements. Even if you have strong documentary proof such as a tax return or a driver’s license showing that the member lives elsewhere, you could lose your case if you don’t present testimony of witnesses.

Who Can Be Witness?

You should try to get witnesses who would have seen the family member on a regular basis, if the family member had really been living in the apartment with the tenant. Here are some examples:

Other tenants. If you can, get the tenant’s neighbors to submit statements or testify in court that they didn’t see the family member at the apartment. In pass-on cases he handles, attorney Mitchell Kossoff of Kossoff, PLLC, routinely contacts the tenants living around the apartment where the family member claims to have lived. These tenants can usually supply details about the family member’s presence at—or absence from—the apartment.

Witness testimony from neighbors may make or break a case for you. In one case, an owner sued to evict a rent-controlled tenant’s wife after the tenant died. The tenant and his wife got married three years before he died, when she was 34 years old and he was 82 years old and in poor health. The owner eventually lost. The tenant’s wife showed that she lived in the apartment with him after they were married. Although the tenant’s wife still received some mail across the street at her old address, a neighbor from the wife’s old building testified that the tenant’s wife came and went regularly from the tenant’s building with laundry and groceries after she married the tenant. And another witness did repair work in the tenant’s apartment every few months and saw the wife’s belongings in the apartment. The fact that the tenant’s wife didn’t show she filed income tax returns from the apartment for the period in question wasn’t considered important by the lower court [23 Jones St. Assoc. v. Keebler-Beretta, October 2010].

In another case, one owner defeated a pass-on claim made by the tenant’s grandson. The court relied in part on the testimony of two long-time neighbors who saw the grandson visiting his grandmother only on rare occasions [O’Sullivan v. Rado, December 1995].

Building employees. Check with your building employees, especially the doormen. Ask if they’ve seen anyone besides the tenant who seems to be living in the apartment. If they haven’t, you can have the employees submit sworn statements or testify in court. Make sure the employees’ testimony has specific details about the family member’s use or presence at the apartment, if any.

In one case, an owner sued to evict rent-controlled tenants’ son after the tenants died. The owner claimed that the son didn’t live with the tenants before they died. The owner eventually lost because the sworn statement of the owner’s managing agent didn’t present any specific claims as to the nature or frequency of the son’s usage of or presence at the apartment before the tenants died [157 East 89th Street, LLC v. McAuliffe, February 2014].

If you have your doormen testify, it’s best to try to bring in the doormen from all shifts to testify about not seeing the family member. If you don’t, the family member might claim that he came and went from the building at a time when the doorman testifying wasn’t on duty. When one owner used employee testimony in a nonprimary residence case, he made the mistake of using the testimony of only one employee who worked a single shift. The owner presented no documentary proof to support its claim that the tenant lived somewhere else, and the owner’s only witness was the building super, who testified that he saw the tenant only occasionally during his morning work shift. This wasn’t enough to prove nonprimary residence [Second-82nd St. Corp. v. Vrionis, November 2011].

In another case, the owner sued to evict the tenant’s nephew after the tenant died. The nephew claimed that he’d lived with his uncle for three years before his uncle died and therefore was entitled to pass-on rights. The nephew presented witnesses—the tenant’s housekeeper, the tenant’s close friend, and the tenant’s sister—who supported his claim. The owner presented documentary evidence, such as the nephew’s tax returns, to show that the nephew hadn’t lived in the apartment. The owner also had the day-shift doorman testify that he saw the nephew only sporadically until the uncle died.

The appeals court ruled that the nephew could remain in the apartment as the tenant. The nephew’s witnesses had presented convincing testimony that the nephew had lived in the apartment. The owner’s witness didn’t convince the court that the nephew hadn’t lived in the apartment. The court noted that the day-shift doorman wouldn’t necessarily see the nephew. The nephew worked from 7 a.m. to between 6:30 and 8 p.m. and wouldn’t have exited or entered the building during the doorman’s shift [300 E. 34th St. Co. v. Habeeb, December 1997].