Joined: 21 Jan 2002
Location: New York City
|Posted: Sat Nov 05, 2011 11:09 am Post subject: Death of a tenant
|Landlord's Best Practices After Death of a Rent-Regulated Tenant
New York Law Journal
November 7, 2011
Landlord-tenant relationships may be caustic and bitter, but they are far from tenuous. In fact, many of these relationships survive even the death of the tenant. In the context of rent-regulated apartments, landlords should act prudently in seeking possession or collecting rent after the deaths of their tenants or suffer complicated litigation, sanctions, or disruptions of their steady collection of rent.
It is settled that privity between a landlord and a tenant is a prerequisite to a landlord's legal claims against a tenant. In the event of the death of a rent-regulated tenant, this seemingly clear principle has been tested in various contexts. For example, how may a landlord recover possession of an apartment after a tenant's death? And related to this question, how may a landlord collect rent owed for the period prior to the tenant's death? Also, when does the claim for rent ripen against the successor tenant? This article attempts to answer these questions in order to provide clarity to landlords and tenants, to avoid unnecessary litigation, and to ensure continuity of possession of rent-regulated apartments.
Seeking possession of a deceased tenant's apartment becomes complicated where the tenant's lease was in effect at the time of his death.
If the lease was in effect, Real Property Actions and Proceedings Law §711(2) governs these claims. The statute reads: "where a tenant dies during the term of the lease and rent due has not been paid and no representative or person has taken possession of the premises and no administrator or executor has been appointed, the proceeding may be commenced after three months from the date of the death of the tenant by joining the surviving spouse, or if there is none, then one of the surviving issue, or if there is none, then any one of the distributees."
Where the deceased tenant's lease is active upon his death, it is clear that the estate of the deceased tenant may remain in possession until the expiration of the current lease. Rubinstein v. 160 West End Owners Corp., 74 NY2d 155 . In fact, courts have held that failure to name and serve an executor or recognized estate representative is a "fatal defect," which the party cannot cure by an amended complaint. Westway Plaza Associates v. Doe, 179 AD2d 408 (1st Dept. 1992).
However, two years later, the Appellate Term, Second Department, made a contrary ruling in Ryerson Towers Inc v. Estate of Brown, 160 Misc.2d 107 (1994). In that case, the deceased tenant's son sought succession rights to a regulated [FN 1] apartment. That court held that since the tenant's son was in sole possession of the apartment in his individual capacity and not as a representative of his mother's estate, the landlord was not required to join the estate as a necessary party.
The Appellate Term relied on an arcane distinction, carved out in the 1956 case Reichman v. Crane, 3 Misc.2d 731, 733, 157 N.Y.S.2d 254, arguing that a person in complete possession is presumed to be the assignee of the tenant. For years after Ryerson Towers, judges in the Second Department followed this logic. See BK-8B Partners, L.P. v. John Doe and India Foxworth, 2007 NY Slip Op 32763(U) (Civ Ct, Kings County). Also, in Poulakas v. Ortiz, 25 Misc.3d 717, 724 (Civ. Ct of NY, Kings, 2009), the court refused to dismiss the petition for its failure to name the estate of the deceased tenant, holding that because the successor conceded that there was no administrator, executor, or surviving spouse, and because the landlord followed the requirements of 711(2), the landlord's failure to name the estate was a de minimis defect. However, the court did bar the landlord's claims for rent (see below).
The difference between Westway and Ryerson Towers was addressed directly in Renaissance Equity Holdings LLC v. Doe, 62678/10. In that case, a Kings County Housing Court judge chose to follow Westway instead of Ryerson Towers, writing: "[A] petition for possession of the apartment that fails to join the tenant of record's estate is fatally defective ab initio." This principle was followed in Reico v. Rivera, 30 Misc.3d 1225A, another Kings County Housing Court case decided in 2011.
Collecting Rent Owed
Although a landlord may maintain a proceeding to evict a tenant by following the requirements of RPAPL §711(2), it may not sue the successor for rent accrued before the death of the tenant. The court in Poulakas noted that the successor tenant "would become liable for the rent only when he has succeeded to the apartment, and is not personally liable for rent owed by the deceased tenant" unless there is privity of contract between the parties. Similarly, in Reico, the court vacated a stipulation holding a successor tenant responsible for rent arrears prior to the deceased tenant's death. The court also noted that "the landlord's proper remedy" for collecting these arrears is "a plenary action against the estate of…the statutory tenant of record." Reico, 30 Misc.3d at 3.
The question of when and how a successor becomes liable for the rent accrued after the death of the tenant is addressed below. In Westway, the court recommended that in the absence of a recognized estate representative, a landlord can petition Surrogate's Court to have an administrator appointed and then sue the administrator. See, Surrogate's Court Procedure §§1001, 1002. While this course of action may be costly and time-consuming, it may be the most prudent approach to collecting rent arrears accrued prior to the death of the tenant.
Claims Against Successors
In 245 Realty Associates v. Sussis, 243 A.D.2d 29 (1st Dept. 1998), the court attempted to address when a successor-occupant of a rent-stabilized apartment becomes the "successor-in-interest." In that case, the lower court considered whether a landlord is liable to a successor-tenant for attorney's fees related to a holdover summary proceeding. The Appellate Division wrote: "The occupant's rights as a successor-in-interest logically must relate back to the date creating his statutory rights, the death of the tenant of record." This ruling follows that of Duell v. Condon, 84 N.Y.2d 773 (1995), which applied the attorney's fees provision of Real Property Law §234 to statutory tenancies. In Duell, the Court of Appeals held that in a statutory tenancy by succession, the landlord/tenant relationship exists "by operation of law."
The principle that a successor becomes the tenant upon the death of the prior tenant (assuming succession rights) was applied to nonpayments in Edelstein & Son LLC v. Levin, 1 Misc.3d 685 (affirmed by the Appellate Term in Edelstein v. Levin, 8 Misc.3d 135A). In Edelstein, a Housing Court judge dismissed all claims for rent against a successor which accrued prior to the tenant's death. The court used the date of the tenant's death as the commencement date for the landlord-tenant relationship with the successor tenant.
However, Edelstein and its progeny did not address the issue of a landlord's refusal to recognize the rights of a successor tenant. This issue was addressed in 615 Nostrand Ave. v. Roach, 15 Misc.3d 1 (App. Term 2d, 11th & 13th Jud Dists 2006). In Roach, the court held that the "wrongful breach by landlord of its duty to give tenant a lease" after the death of the tenant named on the lease caused the Department of Social Services (welfare) to be unable to intervene and pay rent arrears on behalf of the succeeding tenant. In that case, the trial court refused to award the landlord rent arrears for the period prior to the successor's signing of a new lease, reasoning that no landlord-tenant relationship had been created until the initiation of a contract between the parties. Roach implies that a landlord's willful withholding of a rightful lease to a successor negates any rents due in the period until a lease is offered.
After Roach, it seems that the landlord is under the affirmative burden of offering a lease to a successor tenant before being able to collect rent, even for the period after the death of the prior tenant.
Caveats for Landlords
It may be tempting to file a proceeding against a tenant without conducting even a cursory examination into whether that tenant is deceased. Often, the pace of Housing Court litigation precludes such investigation. However, courts have held that where an owner seeks a default judgment of possession without following the proper procedures against a tenant that they knew, or should have known, was deceased, that owner or attorney may be subject to sanctions for frivolous litigation. It is also important to note that a lawyer who pursues an action against a party he knows to be deceased by naming that party in order to circumvent the requirements of RPAPL §711(2) may risk disciplinary proceedings for frivolous litigation. See East Harlem Pilot Block Building 1 H.D.F.C. Inc. v. Serrano, 153 Misc.2d 776 (Civ. Ct, NY County, 1992).
Several issues are clear about a landlord's best practices after the death of a rent-regulated tenant. First, a landlord seeking possession of a unit where the lease is still in effect must strictly adhere to the rules set forth in RPAPL §711(2). In both the First and Second Departments, failure to name the estate as a necessary party may be a fatal defect. Second, the proper means to collect rent owed during the period prior to the death of the tenant is a plenary action against the estate of the tenant. Commencing a nonpayment proceeding against a deceased tenant, without naming the estate, may be sanctionable conduct.
Third, after Roach, it seems that a prudent landlord who seeks to collect rent from a successor should offer the successor a lease soon after the death of the tenant. Failing to do so may bar possessory claims for rent prior to the date that privity of contract is established between the landlord and the successor-tenant. In sum, following these best practices may help limit frivolous litigation and ensure continuity of possession and collection of rent.
Sateesh Nori is the director of housing litigation at Bedford-Stuyvesant Community Legal Services. Lisa Margulies, a law student at the University of Pennsylvania School of Law, assisted in the preparation of this article.
1. In this case, the landlord is a Mitchell-Lama housing corporation. Succession rights in this context are similar to those in rent-stabilized and rent-controlled apartments.