When a family member dies or moves away permanently, can you claim his/her apartment?

One of the most important issues in our communities in particular, but also in New York City in general, is finding affordable housing. Some families sometimes double and triple up, not only to be able to pay the rent, but often because they cannot find apartments of their own.

Back in October 2012, the New York Times detailed the plight of Mr. Mahamadou Tounkara with six children and had to squeeze into a three bedroom apartment with two other families. That meant each family lived in one bedroom with their children. Read full story here https://archive.nytimes.com/www.nytimes.com/imagepages/2012/10/20/nyregion/Y-JP-HOUSING.html

Now, however, when one family moves away, perhaps the leaseholder, can the other family members living in the apartment claim ownership? We posed thsi question, and here are some answers.

Succession Rights: What is it?

Succession rights are the legal right to take over an apartment when the leaseholder dies or moves out permanently. 

The right to succeed, or take over a departed family member’s apartment, applies to rent stabilized, rent controlled, subsidized and public housing apartments. Succession rights allow families to remain in their home. 

Eligibility Requirements for Succession Rights in rent stabilized apartments

– Family relationship: Family members including spouse, children, siblings, and grandparents have the right to succeed, or take over the apartment. Cousins, unmarried couples, aunts, and other non-traditional family may be considered if a family-like relationship can be proven. Documents that show emotional, financial, and legal ties can be used to show this family-like relationship for non-traditional family members.
– Live with the leaseholder for at least 2 years before the leaseholder left or passed away: The apartment must have been your primary residence. There are some exceptions to this requirement.

In a rent stabilized apartment, the tenant does not have to be on the lease at the time of the leaseholder’s death or when the leaseholder has permanently moved out. If the tenant taking over is on the lease, they do not need to claim succession rights – they can just stay and renew the lease.

How to Claim Succession Rights in a Rent Stabilized/Rent Controlled Apartment

You can start the succession rights claim by writing a letter to the landlord. Tell the landlord that the tenant has permanently left the apartment or has passed away.Tell the landlord that you are claiming succession rights and request the next lease renewal in your name. Send this letter via certified mail so you can prove the letter was sent. 

The landlords may ask for additional proof of the relationship and that you resided in the apartment. Gather all evidence including pictures, joint account statements, transactions showing sharing finances, court papers showing guardianship, letters from others describing relationships, etc.

Keep all copies of documents sent to the landlord and attempt to keep all communication with the landlord in writing (email, text, and letters). 

Helpful Tips

-The prime tenant can file the DHCR form ra-23.5, prior to leaving the apartment, and can name the person who will be remaining. This form can be found on DHCRs website with this link.

– Paying the rent in the departing prime tenant’s name can undermine your claim that you have a right to take over the apartment.

– Seek legal advice before communicating with the landlord if at all possible. 


How to know if you are rent-stabilized

Rent Stabilized apartments have three components:
– Built before 1974
– Has 6 or more units
– Is privately owned, not a co-op or condo, not legally deregulated

However, not all apartments in a building are rent stabilized. Depending on the law at the time, apartments were allowed to be deregulated prior to a law change in 2019. Tenants can order a rent history through NYS Homes and Community Renewal, the state agency that oversees rent stabilized apartments.

The rent history shows what rents the landlord registered for previous tenants in the apartment. In certain cases, the apartment may have been illegally deregulated or had an improper rent increase. If a rent history shows huge jumps in rent, this might be a red flag. Tenants who think they were overcharged or their apartment was improperly destabilized can take action. 

NYCHA

Claiming the right to take over a NYCHA apartment is done though a Remaining Family Member Claim. 

– Tenants claiming remaining family status must have already been on the apartment’s lease NYCHA lease.
– NYCHA also requires that the tenant must have lived with the prime tenant continuously for at least one year prior to the leaseholder’s death or permanent move from the household. Military Service or college are some acceptable reasons for breaks in occupancy.
– Tenants must also not be in violation of NYCHA’s rules.
– The Remaining Family Member or RFM (person attempting to take over a NYCHA apartment) must continue paying rent/use and occupancy in their own name until they are recognized. The RFM can either pay the previous tenant’s monthly rent or if that is not affordable, 30% of the rent based on income of all tenants in the household. The rent paid can be the lower of the two, but if tenants choose to pay using the second option, they must be able to provide proof of how they determined the amount.

How to Claim Remaining Family Member status

Tenants who wish to take over the NYCHA lease must inform their management in writing that the prime tenant has left the apartment or has passed away within 10 days. They must then follow a detailed process to win their claim – get legal help if possible.
 
Helpful Tips:  Keep all copies of documents sent to your landlord/management. If a landlord claims to have lost a document/never received it, you can provide proof via a copy. Keep all communication in writing if possible. If written communication is not possible, keep a log of the name, dates, and times of staff members spoken to. If you are submitting documents in person, try to have a copy that you can get stamped. Make sure you follow all deadlines, especially when it comes to NYCHA. Even if you meet all requirements, missing a deadline can get your claim denied. 

Source: Housing Court Answers HCA Newsletter March 2022 Click here https://mailchi.mp/hcanswers/hca-newsletter-january2022-5125077?e=e67270ae99 for the Newsletter

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