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What are the rules for succession rights?
In general, it is possible for a person who is an occupant in an apartment leased to a family member to become a tenant (succeed) after the primary tenant leaves if the family member lived in the apartment for two years or more prior to the tenant's departure, or since the beginning of the tenancy, or since the commencement of the relationship. If the person asserting succession rights is disabled or at least 62 years of age then the period of co-occupancy is only one year.
The minimum periods of occupancy are not considered interrupted by military duty, enrollment as a full-time student, court ordered relocation (not involving the lease or grounds for eviction), temporary relocation because of employment, hospitalization or other reasonable grounds as determined by NYS Homes and Community Renewal (HCR) on application.
It is also possible for a member of a "non-traditional" family to gain control of the apartment if he/she can show "emotional and financial commitment." Courts may consider the following:
For more information on succession, see HCR Fact Sheet #30: Succession Rights.
Can my aunt "will" her rent controlled apartment to a family member?
A rent controlled tenant cannot grant the right to live in the apartment through a will. Nor can someone succeed a rent controlled apartment by paying the rent with personal checks. There are specific rules about who may succeed a rent controlled apartment.
In general, for rent controlled apartments throughout New York State, any "family member" of the tenant may have the right to protection from eviction when the tenant dies or permanently leaves the apartment.
The family member's right to protection from eviction is dependent upon such family member having resided with the tenant as a primary resident in the apartment for two years immediately prior to the death of, or permanent leaving of, the apartment by the tenant (one year for family members who are senior citizens or disabled persons).
The family member may also have the right to protection from eviction if he/she resided with the tenant from the inception of the tenancy or from the commencement of the relationship.
If all the requirements for succession are met, the new tenant's rent would be the same as it was when your aunt was the primary tenant, until the next increase, which can occur once a year in rent controlled apartments.
For definitions of family members, disabled persons and more information, see HCR Fact Sheet #30: Succession Rights.
Or, you may wish to contact NYS Homes and Community Renewal (HCR), the state agency which administers the rent laws.
Do I have rights to my Mom's apartment when she moves?
In general, if you are not disabled or at least 62 years old, you would be protected by succession if you lived with your mother continuously two years before she left the apartment. If you are disabled or at least 62, you would have to live with your mother for at least one year prior to her move. For more information on succession, see HCR Fact Sheet #30: Succession Rights.
If you didn't live in the apartment for two years before your mother left, you don't have the right to the apartment and the landlord need not accept you as the primary tenant. S/he could move to evict you. However, if one of your siblings was in residence, he/she might meet the succession criteria and you would be able to live there as an immediate family member. Also, if you lived in the apartment before and left only because were enrolled as a full-time student, serving in the military, or because of a temporary work assignment, or you were hospitalized, the period in which you were away might not count as an absence.
How do you actually claim succession rights?
Succession Rights can only be claimed when the primary tenant dies or vacates the apartment. At that time, the tenant claiming succession should send a letter by certified mail to the landlord explaining that the primary tenant has vacated the apartment and that he/she would like to sign the next renewal lease. If the primary tenant has died, the death certificate should also be included with the letter. The landlord may ask that you forward copies of documents that prove you meet the definition of family member and that the apartment has been your primary residence for more than two years (one year for those who are disabled or at least 62). When the current lease is up for renewal that is when you would sign a new lease.
If two family members would like to sign the renewal lease they can do so and both will be exempt from paying the vacancy allowance provided they meet the requirements for succession.
Prior to actual succession, the current tenant of record can formally notify the owner of a family member(s) future possibility of succession rights by filling out HCR Form RA 23.5, "Notice to Owner of Family Members Residing With The Named Tenant In The Apartment Who May Be Entitled To Succession Rights/Protection From Eviction."
For further information, you should contact NYS Homes and Community Renewal (HCR), the state agency which administers the rent laws.
Does a tenant in a rent stabilized apartment have the right to add their spouse's name to the lease?
Yes. The tenant has the right, upon request to the owner, to have the name of his or her spouse added to the lease as an additional tenant, if the spouse resides in the apartment as a primary residence. There is no rent increase associated with this change, other than the approved renewal lease increase rates in effect at the time of renewal. If necessary, you may file a complaint with NYS Homes and Community Renewal (HCR), the state agency which administers the rent laws. Also see the HCR FAQ on the subject.
Can a tenant in a rent stabilized apartment add their child's name to the lease?
Unlike a spouse (see above question), an owner is not required to add the name of any other family (or non-family) member. But, on the rare occasion an owner is willing to add another name to the lease, s/he is entitled to charge the vacancy increase, possibly as high as 20 percent, as a new tenancy is created, permitting the owner to offer a vacancy lease naming the original tenant(s) and the added non-spouse as tenants.
However, please note that even if a child is not added as a named tenant to the lease, s/he could ultimately be entitled to "succession" rights when the apartment is vacated by the named leaseholder(s). While a child cannot be added as a named tenant in the lease, the current tenant of record can formally notify the owner of a family member(s) future possibility of succession rights by filling out HCR Form RA 23.5, "Notice to Owner of Family Members Residing With The Named Tenant In The Apartment Who May Be Entitled To Succession Rights/Protection From Eviction." Also see the HCR Opinion Letter on the subject.