CTRC Fact Sheet Index

TenantNet note: These Fact Sheets were published by CTRC in the mid-1990's. Some information will be out-of-date. As far as we know, there have been no updates to these fact sheets. While much of the information may still be valid, the reader should exercise caution.

CTRC Fact Sheets -- reproduced with permission.
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The Community Training Resource Center (CTRC) is a city-wide not-
for-profit organization that champions the rights of modest and
low-income tenants and promotes the preservation, improvement,
and expansion of affordable housing. CTRC provides training and
technical assistance for neighborhood housing groups, community
based organizations, legislative staffs and social service
providers.

CTRC produces fact sheets on tenants' rights, develops and
publishes research reports, and provides a written guide to New
York City government processes. CTRC advocates on budget policies
that affect housing and related services in low-income
neighborhoods. CTRC has led the campaign for the improvement and
expansion of the city's Housing Maintenance Code inspection and
enforcement services.
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CTRC Fact Sheet #108

SUCCESSION

On April 4, 1990, new regulations providing "succession" rights
to rent controlled and rent stabilized apartments took effect.
The regulations were issued by the New York State Division of
Housing and Community Renewal (DHCR) the agency charged with
enforcing the rent laws throughout the state.

The regulations state that where a tenant, defined as any person
or persons named on a lease, permanently vacates an apartment,
any "family member" (as defined below) of the tenant shall have
the right to a renewal lease (rent stabilization) or to
protection from eviction (rent control) provided that such family
member has resided with the tenant as a primary resident in the
apartment for two years (one year if a "senior citizen" or
"disabled person") immediately prior to the permanent vacating of
the apartment by the tenant.

A primary resident is one who resides in the regulated apartment
for more than six months a year and that apartment is the
resident's legal address for federal, state and local income
taxes, voting registration, bank accounts, driver's license, etc.

Succession rights also apply to family members who have resided
in the apartment since the beginning of the tenancy or the
relationship (birth, marriage, etc.) even if that period is
shorter than the two-year/one-year period.

In rent controlled apartments, this means that the family member
or members will become the new "statutory" tenant. In rent
stabilized units, the landlord will be required to renew the
lease, at its expiration, in the name of the family member. (For
a description of this right of permanent tenure under rent
regulation laws, see our fact sheet Leases and Lease Renewals for
Rent Regulated Tenants.)


Definition of a Family

These DHCR regulations were adopted following a landmark decision
by the highest court in New York State that established an
expanded definition of a family. In the case of "Braschi v. Stahl
Associates," the Court of Appeals ruled in July 1989 that
protection against eviction without good cause -- an essential
feature of rent control and rent stabilization -- should be
extended to "non-traditional" as well as "traditional" families.

Miguel Braschi had lived in a rent controlled apartment with his
life-partner, Leslie Blanchard, for more than ten years.
Following Blanchard's death from complications related to AIDS in
1986, the landlord refused to recognize Braschi as the tenant
because he was not related to Blanchard by blood or marriage. The
Court of Appeals ruled that to treat Braschi as a non-family
member was inconsistent with the realities of modern family life.

The "traditional" category covers virtually all relationships,
including spouses, children, parents, stepchildren, stepparents,
brothers, sisters, nephews, nieces, uncles, aunts, grandparents,
grandchildren, parents-in-law and children-in-law. Cousins are
not included and therefore have to meet the standards of "non-
traditional" family members.

The "non-traditional" category is not spelled out in the same
fashion, but covers lesbian and gay couples, unmarried
heterosexual couples, and senior citizens and disabled persons
living together as family units with or without romantic
involvement.

Traditional family members merely have to meet the residency
requirements and prove the family tie. Non-traditional family
members are required to demonstrate not only that they have lived
in the apartment for the required period, but that they also had
the kind of relationship with the tenant that can be
characterized as familial. To establish a family-type
relationship under the succession regulations, non-traditional
family members have to prove "emotional and financial commitment
and interdependence" with the tenant.


Deciding Factors for Non-Traditional Families

Several factors are considered in determining whether such
commitment and interdependence existed. These include:

     o    longevity of the relationship

     o    sharing of, or relying upon the other, for payment of
          household expenses or other necessities of life

     o    joint bank accounts, joint credit cards, joint
          ownership of personal or real property, or sharing a
          household budget for purposes of receiving government
          benefits (SCRIE)

     o    family type activities: functions, holidays
          celebrations, social and recreational activities

     o    holding themselves out as family members to other
          family members and society at large, through their
          works or actions

     o    formalized legal obligations, executing wills, naming
          each other as executor or beneficiary, granting powers
          of attorney

     o    regularly performing family functions such as caring
          for each other or each others extended family members.

No single factor is solely determinative.


Privacy

Most contested succession rights cases are determined in the
courts. Landlords are forbidden to raise, and judges are barred
from considering, the question of sexual relationship. This is an
important privacy protection, but it can cut both ways: for non-
traditional family members willing to discuss it, evidence of a
sexual relationship could help establish emotional commitment and
interdependence. Therefore, despite this prohibition, evidence of
a sexual relationship might be helpful to the family member's
case if the judge allows it to be introduced.


Roommates

Mere roommates, with whom no family relationship exists, are not
covered by succession rights. But this has no effect on the right
of tenants to live with persons not related to them. Since 1983,
state law allows tenants to share their apartment with one
unrelated person and that person's immediate dependents (i.e.,
mother with 2 children). It is also possible for someone who
started out as a roommate to become a family member over time.


"Disabled" Redefined

The regulations also improve the definition of "disabled person"
for purposes of succession. The more restrictive legal standard
that applies to co-op/condo eviction plans and personal use
evictions (where the landlord wants the apartment for himself or
an immediate family member), denies protection for disabled
persons who engage in any substantial gainful employment,
including even part-time employment. (See our fact sheet,
Fighting Personal Use Evictions.)

This punitive standard for disability contained in the co-
op/condo and rent laws can be changed only through action by the
State Legislature. But because there is no language in state law
limiting succession, DHCR was able to adopt a less restrictive,
more compassionate standard.

The new DHCR regulations adopt a broader definition based upon a
"substantial limitation of one or more major life activities,"
such as impairment of ability to walk, hear, or see. Thus all
disabled family members, including those who have jobs, will be
able to succeed if they meet the one-year minimum residency
requirement.


Notice to Landlord

The DHCR has a procedure that allows the tenant to inform, and
the landlord to find out, about family members living in the
apartment. This is done on DHCR form RA-23.5, which is entitled
"Notice To Owner Of Family Members Residing With The Named Tenant
In The Apartment Who May Be Entitled To Succession
Rights/Protection From Eviction". This form may be submitted by
tenants of rent stabilized or rent controlled apartments at any
time, or by owners of rent controlled apartments at any time, or
by owners of stabilized apartments at lease renewal time. There
is no penalty to the tenant for failure to provide this
information to the landlord. But failure of the tenant to do so,
(whether requested or not) might make it more difficult for
family members, later, to establish their right to remain. The
legal burden will always be on family members (especially non-
traditional ones) to prove the nature of the relationship, but
providing the information to the owner can help establish proof,
at least, of the minimum period of required residency.

The question of whether or not to send the notice is a difficult
one. Legally, it makes sense to establish the identity, nature of
family relationship, and date primary residence with the tenant
commenced. Practically, it might encourage the landlord to bring
a Supreme Court lawsuit to seek a declaratory judgment that the
family member has no right to succeed. Consult a lawyer or a
neighborhood housing organization.


Before Succession Becomes an Issue:

Family members (traditional and non-traditional) who want to
protect their rights and tenants who want to protect their family
members should become familiar with succession regulations.
Consideration should be given to whether or not it makes sense to
send the landlord the DHCR-RA-23.5 form just described. Non-
traditional families should carefully analyze the various
criteria listed that establish "emotional and financial
commitment and interdependence" and implement as many of the
formal and legal connections as are practical or desirable for
their particular relationship.

Traditional family members (related by blood or marriage) usually
can easily prove relationship to the tenant of record, but should
have firm evidence of length of primary residence (tax returns,
bank accounts, voting records, etc.), or if less than the minimum
required by the statute, proof of residing with the tenant since
the beginning of the relationship or from inception of the
tenancy.

These minimum residency requirements will not be considered
interrupted by any period during which the family member
temporarily relocates because he or she:

     o    is engaged in active military duty;

     o    is enrolled as a full time student;

     o    is not in residence pursuant to a court order;

     o    is required to do so because of employment;

     o    is hospitalized;

     o    has other reasonable grounds;


Tenant of Record Leaves or Deceases

If the apartment is rent stabilized, the family member should
notify the landlord in writing (sent by certified mail, return
receipt requested) that the tenant has died or moved, and that
the next lease renewal should be in the name of the family member
or members. Alternatively, the family member can wait until the
lease is up for renewal and notify the landlord at that time. But
there is no legal advantage to waiting, and a possible advantage
to acting promptly.

If the landlord does not offer the family member a renewal lease,
filing form RA-90 with DHCR, Tenant's Complaint of Owner's
Failure to Renew Lease and/or Failure to Furnish A Copy of a
Signed Lease (see our fact sheet, Tenant Complaints to the New
York State Division of Housing and Community Renewal) might be
considered. The landlord can not force the successor tenant to
renew the lease before its expiration and then the tenant should
pay only the appropriate renewal increase as determined by the
then current Rent Guidelines Board order. The landlord is not
entitled to a "vacancy allowance" rent increase.

If the apartment is rent controlled, then there is no current
lease or lease renewal at issue. The tenant has "statutory"
status, meaning that the rent control law (statute) gives the
tenant the right to remain without a lease. (See our fact sheet,
Leases and Lease Renewals for Rent Regulated Tenants.) The same
kind of letter should be sent by certified mail, return receipt
requested. But this letter, instead, should ask to have the rent
bill addressed to the family member who is the successor.

If the landlord does so, it would be evidence (but not
necessarily conclusive) that the landlord had acknowledged the
family member as the legal tenant. This also applies to the rent
stabilized family member, even if the renewal lease is not
forthcoming. The longer the landlord accepts payment, however,
the stronger the family member's case will become, but by itself,
again, it is not conclusive. Rent bills and rent payments raise a
number of issues that are best dealt with by a competent tenant
lawyer.


Conclusions

With the passage of the "Roommate Law" (Real Property Law Section
235-f) which restricted landlords from dictating who could live
with the tenant and who could not, and the eventual recognition
by the courts and governmental agencies of the "non-traditional
family unit" starting with the "Braschi Case" the cause of
tenants rights and, in fact, civil rights in general, has been
dramatically strengthened.

These developments are of historical importance, establishing for
the first time legal concepts and contractual responsibilities
never before recognized, or allowed.

The practical result of these changes is that in New York City
and State the number of court ordered evictions based on
succession to regulated apartments, has been significantly
reduced.

These regulations, as discussed above, have made it possible to
guaranty that legitimate family members and persons living
together as a vital family unit, will no longer be terrorized
with the threat of losing their homes and thereby made to suffer
a cruel disruption of their lives.

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These article are Copyright 1995 and 1996 by Community Training Resource
Center (CTRC) and reproduced by TenantNet. They may be freely
redistributed in their entirety provided they are reproduced exactly
as in the originals, including this copyright notice, the opening and
closing informational banners and any references to either CTRC
or TenantNet must be included.

These article are provided as is without any express or implied
warranty. While any information in these article is believed to be
correct at the time of writing, these articles are for educational
purposes only and do not purport to provide legal advice. If
you require legal advice, you should consult with a legal
practitioner licensed to practice in your jurisdiction.

Community Training Resource Center                (212)964-7200
47 Ann Street
New York, NY 10038

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