Can a Landlord Evict a Family Member or Partner After the Tenant of Record on the lease leaves in New York City?
Typically, if the tenant of record on a lease dies or moves out of the apartment, the remaining occupants in the apartment do not have an indefinite right to remain in the apartment. However, if the occupants do not voluntarily vacate, the landlord must bring a legal action against any remaining occupants before such occupants can be removed from the apartment.
Exceptions to this rule apply to “regulated apartments.” Sometimes a family member or partner may have “succession rights” to the tenancy. Such apartments include Rent Stabilized apartments, Rent Controlled apartments, Section 8 apartments, Federally subsidized buildings, NYCHA, Mitchell Lama Coops, and HDFCs. Each type of regulated apartment has its own rules and regulations regarding succession rights.
This information primarily deals with Rent Stabilization and Rent Control. If you live in another type of regulated apartment and you wish to determine whether you have succession rights to the apartment in which you reside, please contact our office.
Who is Entitled to Succeed to a Tenancy?
Only “family members” are entitled to succeed to a tenancy. “Family member” is defined as a husband, wife, son, daughter, stepson, stepdaughter, father, mother, stepfather, stepmother, brother, sister, grandfather, grandmother, grandson, granddaughter, father-in-law, mother-in-law, son-in-law or daughter-in-law of the tenant or permanent tenant.
The definition of “family member” also includes any other person(s) residing with the tenant or permanent tenant in the housing accommodation as a primary resident, who can prove emotional and financial commitment and interdependence between such person(s) and the tenant.
Nontraditional Family Member
Based on case law, you can possibly qualify as a successor tenant if you are not related by blood or marriage, if you qualify as a nontraditional family member.
Factors Courts Consider in Defining Nontraditional Family
Although no single factor shall be solely determinative, evidence which is to be considered in determining whether such emotional and financial commitment and interdependence existed may include such factors as: (i) longevity of the relationship; (ii) sharing of or relying upon each other for payment of household or family expenses, and/or other common necessities of life; (iii) intermingling of finances as evidenced by, among other things, joint ownership of bank accounts, personal and real property, credit cards, loan obligations, sharing a household budget for purposes of receiving government benefits, etc.; (iv) engaging in family-type activities by jointly attending family functions, holidays and celebrations, social and recreational activities, etc.; (v) formalizing of legal obligations, intentions, and responsibilities to each other by such means as executing wills naming each other as executor and/or beneficiary, granting each other a power of attorney and/or conferring upon each other authority to make health care decisions each for the other, entering into a personal relationship contract, making a domestic partnership declaration, or serving as a representative payee for purposes of public benefits, etc.; (vi) holding themselves out as family members to other family members, friends, members of the community or religious institutions, or society in general, through their words or actions; (vii) regularly performing family functions, such as caring for each other or each other’s extended family members, and/or relying upon each other for daily family services; (viii) engaging in any other pattern of behavior, agreement, or other action which evidences the intention of creating a long-term, emotionally committed relationship.
Nontraditional family member succession cases are more difficult to prove and generally require the assistance of a lawyer.
What are the Other Requirements?
The regulations regarding succession rights also provide for a “two-year rule.” A family member seeking succession rights must live continuously with the tenant of record in the apartment as the “primary residence” of each of them, for at least a two year period prior to the time that the tenant on the lease dies or moves out.
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Senior Citizen Successors
If the successor tenant is over 62 years of age, or qualifies as disabled under the law, the period of co-habitation in order to qualify as a successor tenant is one year rather than two.
Who Proves Succession?
The successor tenant has the “burden of proof” to establish that he/she is entitled to succession rights. As a result, it is strongly recommended that tenants seek legal assistance if they find themselves in such a situation.