Attention to legal detail protects apartment succession rights

Rent-stabilized, rent-controlled and Mitchell-Lama apartments are a valuable commodity in New York City. For many families, a unit may represent their greatest asset. State and city laws recognize that value by establishing rules that allow these residences to be transferred to others without the loss of rent protection or increasing the risk of eviction. But succession rights are not automatic. Protecting them requires understanding the laws, exercising care in following them and acting quickly after the original tenant vacates.

Time is of the essence for succession

Some holders of rent-stabilized and rent-controlled units make incorrect assumptions that end up putting succession rights at risk. As the New York City Rent Guidelines Board states, right of succession depends on the duration of shared occupancy time in a unit.

Although it may sound logical, simply putting children's names on the lease as occupants does not ensure that they will have succession rights if the leaseholder dies or moves away.

Indeed, successors don't have to be relatives by blood or marriage. Relationships described as "nontraditional" can also make an occupant eligible for succession. What is important is the element of time and proof that the relationship is like that of a family. You may need items such as joint accounts, powers of attorney and executorship of wills to prove that a nontraditional relationship is "family."

A claim for succession cannot be made until the leaseholder has "permanently vacated," which means moved out or died. The claim should be made soon after the leaseholder has permanently vacated. (The leaseholder should not pay the rent or sign any renewal leases after vacating. That could indicate that he or she never permanently vacated.)

Conditions for establishing succession include:

  • Proof of consistent co-occupancy: The unit in question must be the leaseholder's and any potential successor's primary residence. That is established by each showing proof of co-occupancy for at least 183 days in a year.
  • Years of occupancy: Succession rights extend to children, and may extend to other occupants, if it can be shown that shared primary residency existed with the lease-holding tenant in the final two years before he or she vacated.

Potential successors who are over age 62, or disabled, can assume the lease if the apartment has been a shared primary residence for only one year before the leaseholder vacates.

Proving residency duration

It is not enough to assert you meet the requirements for succession rights. The burden is on you to prove it. Some forms of documentary evidence showing co-occupancy which the law accepts include:

  • Tax records
  • Voter registration
  • Monthly credit card and/or bank statements

Possible successors can include not only children, but spouse, son, daughter, father, mother, stepfather, stepmother, brother, sister, grandfather, grandmother, grandchildren, father-in-law, mother-in-law, son-in-law and daughter-in-law. And, as noted earlier, blood relationship is not essential. But all the parties must have lived as co-occupants with the leaseholder for the required time periods mentioned above to maintain succession rights.

Getting a lawyer involved early may be beneficial

If your rights are violated, or you feel they are threatened, an attorney may be able to help. They can write the landlord to explain the circumstances and attach documents establishing the relationship.

If the original tenant's lease has an attorneys' fees clause and the tenant wins the case, the landlord will have to pay the fees. If the tenant loses the case, however, they do not have to pay the landlord's attorneys' fees. This can result in landlords being reluctant to fight a case because they don't want to pay these fees.

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