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Succession Rights Swordsmanship in New York City

A rent-stabilized apartment in New York City is an extremely valuable asset. The size and location of a regulated unit can almost never be replaced at an equivalent price or on similar lease-terms in today's market. Most times, it doesn't benefit the landlord for you to stay on as a tenant. Removing you would increase profits, because the rent can be jacked up and the unit escapes regulated status. Consequently, if you remain after the named tenant dies or moves out, the landlord will see an opportunity to act. The significant financial incentive to evict protected tenants means that you're probably in for a legal knife-fight in the courts. So if you want to inherit a rent-stabilized tenancy, take advantage of every right you have.

A common tenant-succession case arises when a son or daughter lives with Mom or Dad, who is up in years. Living with an elderly parent, whose apartment is rent-stabilized or rent-controlled, almost always leads to litigation when adult children assert their succession rights. Typically, once the parent dies or leaves, the landlord finds a reason to sue for control of the apartment. Who wins is often a matter of the best evidence.


What you must show the Court...

 The successor must prove that he or she lived with the named tenant for the immediate two years prior to death or departure. There is an exception for successors who are senior citizens or disabled. They need to live with the tenant, or "cohabit," for one year only.

Things get sticky if Mom or Dad stayed elsewhere during or after the cohabitation period, but still retains a connection to the apartment. For example, if a parent has a vacation home or other property and spent time living there, the landlord can argue that the unit is not the leaseholder's primary residence. In other cases, a parent moves out but continues to renew the lease, or the rent is still paid in his or her name, while the son or daughter continues to reside in the unit.

Legally, you can't take over or "succeed to" the apartment until your parent lets it go. So that means if your mother or father hasn't actually relinquished the unit, a formal date cannot be established from which to calculate the cohabitation period. Let's say, for instance, that Mom or Dad has been staying with another child for a year or so, and you have remained in the apartment up to now. The landlord will likely argue that since the "named tenant" hasn't been living there for a year, but hasn't given up the lease yet, the two-year cohabitation requirement cannot been met.

If claims such as these can be proved at trial, succession rights under rent-stabilization would be lost, because the cohabitation period rule would not be satisfied.

To retain your rights to stay in the apartment, you must show that it remained your parent's primary residence during the requisite cohabitation time. To prove that Mom or Dad remained there until departure, you could demonstrate to the Court that your parent's belongings have been in the unit, he or she continued to pay rent, and was not living anywhere else when the lease was renewed. These facts strengthen the claim of co-residency and cohabitation. Keep an ongoing file of relevant documents such as:

  • canceled rent checks
  • invoices for furniture and appliances
  • dated photos of family activities in each room

Include the front page of that's day's newspaper in any photo you take - this helps in proving the date. You must retain the newspaper so that it can be compared with the picture, as evidence in Court.


Succession Rights in a Divorce

 Another relatively frequent case involves succession rights in a divorce. Say you are living in a rent-regulated apartment, and the lease is in your spouse's name. You may still have rights to remain there after you divorce and your partner leaves, if the cohabitation rule is met. Again, you'll have to provide evidence that you have both resided there, as a primary residence for each of you, for the required two or one-year term.

In a matrimonial succession-rights case, one danger to avoid is having your ex-spouse remain after the divorce is final. From a legal perspective, you are then roommates and no longer family members to whom succession rights are automatic. Deciding who gets the asset of the rent-regulated apartment can be an important issue to resolve, and involves Domestic Relations and Landlord Tenant law. Cooperation between spouses and retaining a matrimonial attorney who is knowledgeable about New York housing laws are critical.


What the Court Will Consider in Any Succession Rights Case

In all instances, the law requires a family relationship to validate succession rights. However, it is possible to meet the definition of a "Non-Traditional" family relationship when the parties "can prove emotional and financial commitment, and interdependence." The Court will consider:

  • the longevity of the relationship
  • holding yourselves out as family members
  • sharing household or family expenses and/or other common necessities of life
  • proof of intermingling
  • engaging in family-type activities and performing family functions
  • formal Wills naming each other as beneficiary
  • Living Wills
  • Health Care Proxies
  • Power of Attorney documents
  • Domestic Partnerships
  • engaging in any other pattern of behavior evidencing a long-term, emotionally committed relationship.

As a practical matter, while a successful outcome is possible with the proper evidence in a succession rights case, it is not guaranteed. These cases have a multitude of legal and fact-specific distinctions, with just a few covered here. Your best bet would be to consult a Landlord Tenant attorney who has represented tenants in similar circumstances and won.

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