Posted by TenantNet on August 30, 1997 at 11:38:37:
In Reply to: Succession for Bro/Sis in Law posted by Gelman on August 28, 1997 at 10:30:58:
: Are brothers/sisters in law considered family members for rent stab.
succession purposes?
From our newsletter and the Met Council newspaper:
Succession: No Nieces Need Apply?
By David Frazer
"Succession rights" is shorthand for the provisions of the
rent-stabilization and rent-control laws which, in certain
circumstances, permit family members of tenants who die or
permanently vacate their apartments to take over the apartment or
succeed to the tenancy in their own name.
The "Rent Regulation Reform [sic] Act of 1997" restricts these
succession rights in two important ways: It reduces the categories of
family members who may take over an apartment, and it allows massive
vacancy increases if an apartment is passed on more than once.
Family Members
Under prior law, a broad range of family members could succeed to a
tenancy, provided they occupied the apartment as their primary
residence for at least two years immediately before the "tenant of
record" died or moved (in certain instances that period of may be
less). The new law removes aunts, uncles, nieces and nephews from the
list of relatives eligible to take over an apartment, limiting
succession to parents, children, stepchildren, step-parents, in-laws,
spouses, siblings, grandparents, and grandchildren.
Despite repeated threats from State Senate Majority Leader Joseph
Bruno, the new law preserves the right of "non-traditional family"
members, such as gay and lesbian partners, unmarried couples, or
other people who can show the emotional and financial interdependence
of a family relationship.
Rent Increases
Under the old law, when a family member succeeded to a tenancy, she
or he assumed the lease at the same base rent and was not charged any
extra increases as a new tenant. This rule applied regardless of the
number of times different family members succeeded to the tenancy.
The new law limits this rule to a single succeeding tenant. If this
new tenant then passes the apartment on to another family member, the
next family member can keep the apartment but must pay a hefty rent
increase. That tenant will be subject to the 20% vacancy increase,
plus whatever other increases the landlord could charge if the
apartment were vacant. This will dramatically increase rents for the
second generation of succeeding tenants.
Unresolved Questions
The succession-rights amendments raise at least two unresolved legal
questions. First, are the changes retroactive? What would happen, for
instance, if a niece lived together with her aunt, the tenant of
record, for more than two years and the aunt died on June 15, 1997,
before the new law went into effect? Under current law, a succeeding
family member's rights "vest" or become effective on the date the
tenant dies or moves. Thus, it seems likely--but is far from
certain--that a court would consider the niece's rights under the old
law and rule in her favor.
Second, can the newly excluded family members argue that they are
entitled to succession rights as non-traditional family members? What
if the aunt from the prior example dies on Oct. 16, after the new law
is in effect, but had cared for her niece for many years as if she
were her daughter? The amendments, at first blush, would seem to
exclude the niece from any succession rights. But, if the niece could
show the emotional and financial interdependence necessary to prove a
non-traditional family relationship, she might be able to take over
the lease.
Current law recognizes that unrelated persons who are cared for by
the tenants as children can succeed under the non-traditional
category. If persons wholly unrelated by blood can be non-traditional
family members, there does not seem to be any valid reason to exclude
nieces and nephews. But, as with many elements of the new law, we
must await the inevitable court battles to learn the final answer.
David Frazer is of counsel to the tenant law firm of
Himmelstein, McConnell, Gribben, & Donoghue.
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