Joined: 13 Apr 2002
|Posted: Wed Jun 05, 2002 2:58 pm Post subject: SUCCESSION RIGHTS IN PUBLIC HOUSING (NYCHA)
SUCCESSION RIGHTS IN PUBLIC HOUSING (NYCHA)
WHAT ARE SUCCESSION RIGHTS AND
WHO SHOULD BE CONCERNED ABOUT THEM?
There are rules governing whether a person who has lived with a New York City Housing Authority tenant can remain on in the apartment after the tenant dies or moves out. A person entitled to remain after the tenant leaves is said to have succession rights to the apartment. Such a person is called a Aremaining family member,@ even though the person may not actually be related to the tenant.
Anyone who lives with a New York City Housing Authority (NYCHA) tenant but whose name is not on the original family composition or who has not been officially added to the household by NYCHA should read this brochure and take steps soon to improve his or her legal situation.
WHO CAN QUALIFY AS A REMAINING FAMILY MEMBER (ARFM@), ENTITLED TO SUCCEED TO THE NYCHA TENANCY?
A person can qualify as a remaining family member only if s/he meets all three of these requirements:
(1) the person must fall into one of these categories:
(a) s/he was listed on the original family roster when the tenancy began OR
(b) s/he was granted permission by NYCHA to become a permanent member of the household,
(c) s/he was born to or adopted by someone in category (a) or (b) during the time such person lived in the apartment AND
(2) s/he has continued to reside there and be listed on the family composition ever since becoming a member of the household AND
(3) the RFM must be Aotherwise eligible@ for NYCHA housing, using NYCHA=s standards regarding income and criminal background checks.
WHAT ABOUT THE TENANT=S RELATIVES?
NYCHA uses rules very different from those governing private landlords. Under NYCHA=s rules, the only people entitled to stay on are people who are recognized by NYCHA as legally residing there, on a permanent basis. Only NYCHA can provide that recognition. There are no exceptions. Any family member who is not on the family composition should take steps NOW to be added.
HOW CAN A TENANT ADD AN ADDITIONAL
PERSON TO HIS OR HER HOUSEHOLD?
The only new household member which NYCHA must accept is a child, born to or adopted by a person who is already a recognized family member, listed on the NYCHA family composition.
In every other case, the tenant must ask NYCHA to add the person to the household. NYCHA will ask for information about the person=s income and will run a criminal background check on the person.
Some reasons that NYCHA may deny adding a household member are:
(1) the proposed additional household member earns too much money to qualify for public housing;
(2) the proposed additional household member fails a criminal background check;
(3) the tenant is about to move out and is trying to pass on the apartment;
(4) the proposed additional household member has been evicted or excluded from this or another NYCHA apartment (but the tenant can request that NYCHA reconsider an exclusion, based on changed circumstances, and if NYCHA denies that reconsideration, the tenant can grieve that decision);
(5) the proposed additional household member will make the apartment overcrowded (more than two people per bedroom); or
(6) the proposed additional household member is not a senior citizen, and the tenant lives in a building or part of a building reserved for senior citizens.
Frequently, when NYCHA denies an additional occupant permission to join the household because of either overcrowding or because the apartment is within senior citizen housing, NYCHA will grant temporary permission to the occupant to stay with the tenant. Temporary permission will not lead to succession rights; if the tenant dies or leaves, the person who had temporary permission to stay there will also have to leave.
NYCHA sometimes denies tenants without giving a reason or for an unlawful reason. A favorite (but not lawful) reason given by NYCHA for denying a request to add a household member is that the tenant hasn=t given a good enough reason to add the new person. The tenant has no obligation to provide a reason, beyond stating that the tenant would like to live with the proposed new household member. If NYCHA fails to give a reason for the denial or gives a bad reason, the tenant should proceed with a grievance. (See section on grievances)
HOW DOES A REMAINING FAMILY MEMBER ENFORCE HIS OR HER RIGHTS IN THE EVENT THE NAMED TENANT DIES?
If the RFM believes that s/he meets all the requirements to succeed to the lease of the deceased, the RFM should seek a Remaining Family Member Grievance, a one-page form which tells NYCHA that the RFM is asking to have the lease transferred to his or her name. NYCHA will want proof of the tenant=s death. - See the section of this pamphlet on grievances.
HOW DOES A REMAINING FAMILY MEMBER ENFORCE HIS OR HER RIGHTS IN THE EVENT THE NAMED TENANT IS MOVING OUT?
Ideally, the tenant will make sure that the person who is going to remain has been legitimately added to the household well before announcing that s/he is leaving. If that has already been done, then the tenant and the household member can go into the management office together, and the tenant can relinquish rights to the apartment while the RFM fills out a RFM grievance form. NYCHA may ask for proof of the tenant=s new residence. If the tenant just moves out without telling NYCHA, it can be difficult to persuade NYCHA that the tenant has actually moved out. Anyone remaining in the apartment should take steps to find the tenant and get the tenant to surrender possession. If the household member fails to do this, NYCHA will continue to count the tenant=s income, in calculating the rent.
WHAT SHOULD AN OCCUPANT DO, IF THE NAMED TENANT HAS ALREADY DIED OR MOVED AWAY, AND THE OCCUPANT WAS NEVER LAWFULLY ADDED TO THE HOUSEHOLD?
It is extremely unlikely that such an occupant is going to be able to stay permanently in the apartment. When NYCHA figures out what is going on, NYCHA will start a Alicensee holdover proceeding@ in housing court to evict the occupant.
Such an occupant would be well-advised to
(a) search for alternative housing; and meanwhile
(b) keep a very low profile: in other words, avoid calling the attention of the management office to the apartment. NYCHA is a large bureaucracy, and if an occupant continues paying rent, living quietly, and bothering nobody, that occupant is likely to be overlooked for weeks or months or (in rare cases) even years.
The occupant is not making the chances of gaining a lease in his or her own name any greater by remaining for additional months or years. Under existing law, NYCHA has the power to evict such an occupant, even if NYCHA delays the court action for a very long time.
Eventually, NYCHA will start a court proceeding. The occupant will probably be offered time to move. NYCHA generally offers two months as the agency=s starting position; a good negotiator can generally push NYCHA up to five or six months. The court has the power to award up to six months= time to move.
FILING A GRIEVANCE: A POWERFUL TENANT RIGHT
A tenant may file a grievance if s/he disagrees with virtually any decision made by the NYCHA project manager. The procedure is the same, no matter what the subject of the grievance is. A tenant should file a grievance if NYCHA refuses without a good reason to add a household member to the family=s composition.
When the project manager gives the tenant a decision with which s/he disagrees, the tenant has 10 business days to file a grievance. If the office refuses to provide a grievance form, the tenant should use blank paper to write out the grievance, putting tenant=s name and address and the word GRIEVANCE at the top.
NYCHA has taken the position that all rent must be current for a tenant=s grievance to be processed. If possible, the tenant should pay all rent arrears before filing a grievance.
In the grievance, the tenant should explain why the decision is wrong. The tenant may attach documents, if the documents will help prove the point. S/he should make and keep at least one copy of the entire package.
If the project manager denies the grievance, the tenant may appeal within 10 business days to the district office. She should explain to the district office why the project manager=s decision is wrong. Again, s/he should make and keep at least one copy of the entire package.
If the district office denies the grievance, the tenant may appeal within 10 business days to the main office, which is located at 250 Broadway, in Manhattan. The tenant=s timely filing of a written grievance will lead NYCHA to schedule a hearing. At the hearing, the tenant can present witnesses or written evidence to support his or her position.
If the tenant loses the hearing at 250 Broadway, the tenant has four months to go to State Supreme Court to appeal. It=s a good idea to seek a lawyer=s help for such an appeal.
Published 3/20/01 Bronx Legal Services
The above information is from a non-attorney tenant activist and is not considered or to be used as legal advice.