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A friend recently moved into his elderly mother's rent-stabilized apartment. Can he have his name added to the lease? What are the rules for succession in rent-stabilized apartments?
Your friend can move into their mother's apartment legally, but can't have their name added to the lease while she's still living there (except in the highly unlikely event that the landlord agrees to add them to the lease), says Sam Himmelstein, a lawyer who represents residential and commercial tenants and tenant associations.
"The only family members that have the right to be added to an existing lease if the tenant is still in occupancy are spouses," says Himmelstein. "Other family members such as children, grandchildren, and siblings are allowed to succeed the tenancy, or take over the lease after the person permanently vacates."
Rules for succession
To succeed a relative in their rent-stabilized apartment, you have to have lived in the apartment with them for two years before they leave. (If you're either disabled or over the age of 62, the length of required time shortens to one year.) Once the relative permanently vacates—whether because they move out, pass away, or go into a medical facility or nursing home with no likelihood of returning—you can succeed them in the apartment.
The two-year rule is not interrupted if the successor had to be away from the apartment for specific reasons, like attending school, being hospitalized, or serving in the military. The two-year period can be lessened if the tenant and successor co-occupied the apartment from the inception of the relationship, or the inception of the tenancy.
Whatever the case, it must be proven that during the two-year period the apartment was the tenant and successor’s primary residence, which generally means they lived there for at least 183 days a year and that their “paper trail” is at the apartment. This trail includes tax returns, driver’s licenses and other automobile documents, voter registrations, bank, credit card, employment, school, financial medical, and insurance records
"Then, if you co-occupy with the tenant for the one or two year period prior to them permanently vacating, you can take over the apartment as the new legal tenant," says Himmelstein.
As for who is legally entitled to succeed a relative in their apartment, the DHCR defines “family member” in specific terms. Nieces, nephews, and cousins, for instance, don’t qualify; see their fact sheet to find out which relatives do.
“This also includes individuals who are not related by blood or marriage but have an emotionally and financially interdependent relationship, most commonly an unmarried couple,” Himmelstein says.
The DHCR fact sheet lists the factors that would constitute this kind of relationship, including shared bank accounts, joint attendance of family functions, and shared household expenses. In order to prove an interdependent relationship, Himmelstein suggests that successors hold onto a variety of documentation, from bank statements to photographs together to holiday cards exchanged.
So while your friend can't get his name on the lease just yet, it's perfectly legal—and indeed, advisable—for him to move in with his mother now.
As for the question of whether he needs to give the landlord a heads up, "It's not legally required, but it's advisable if down the road the son wants to claim succession rights after his mother leaves or dies, since it establishes a marker for when he began occupancy," says Himmelstein.
How to succeed your relative
Once your relative permanently vacates the apartment, write a letter to your landlord—or have a lawyer write on your behalf—about your intention to succeed, stating what your relationship to the tenant is and how long you’ve been in the apartment.
“I always ask in my letters, ‘Please let me know what documentation you would like.’ Sometimes we get a response from the landlord or their lawyer with a very long document request. Other times they say, give us what you think proves it,” Himmelstein says. “If there’s a court battle over this, it’s the successor’s burden of proof to establish succession, not the landlord’s burden to disprove it.”
Succession cases typically end up in court when a landlord brings an eviction case claiming the successor has no right to be in the apartment—another reason why it’s so important to hang onto documentation.
“An interesting thing in succession cases is the successor can often get their legal fees repaid if the tenant’s original lease had an attorney’s fees clause,” Himmelstein says. “If they lose, they’re not liable for any fees, because they’re not bound by the lease, and if they win, they inherit the lease”.”
It has become less likely that a landlord will bother taking a successor to court, as the new rental laws passed by the state senate eliminated vacancy deregulation, which used to allow landlords to raise the rent on stabilized apartments when a tenant moved out, and remove the apartment from stabilization once it went above the stabilization threshold.
“Landlords no longer have any incentive to fight succession, so many of them decide they might as well just give the apartment to a family member and not worry about hiring a broker, marketing it, and fixing it up,” Himmelstein says.
Landlords are less inclined to do that if the apartment is in a condo or co-op, where it could be immediately deregulated, or if it’s rent-controlled, but if you follow the rules for succession you’re less likely to face a major battle.
“Sometimes tenants will move out but continue to renew the lease and pay rent because they don’t want to rock the boat,” Himmelstein says. “Then suddenly the tenant dies, or the landlord finds out, and when a relative tries to succeed there’s a question of what the permanent vacate date is."
Case law is split on how to handle such a situation, so your best bet is to follow the laws for succession and make sure to document your occupancy of the apartment and relationship to the tenant. For this reason, it is also important for the successor to assert their succession rights immediately after the tenant vacates.
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Sam Himmelstein, Esq. represents NYC tenants and tenant associations in disputes over evictions, rent increases, rental conversions, rent stabilization law, lease buyouts, and many other issues. He is a partner at Himmelstein, McConnell, Gribben, Donoghue & Joseph in Manhattan. To submit a question for this column, click here. To ask about a legal consultation, email Sam or call (212) 349-3000.