The most fundamental rule for succeeding a relative in a rent-stabilized apartment is that you lived in the apartment with them for two years before they vacated or passed away, says attorney Sam Himmelstein.

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Question:

My grandmother lived in her apartment for over 40 years before her death this month. I have lived with her on and off and was born and raised here. My grandmother always said I would take over her apartment after she died, but management says she took me off the lease some time ago. I was offered another unit but I want to stay in this apartment. What are my options?

Answer:

The most fundamental rule for succeeding a relative in a rent-stabilized apartment is that you lived in the apartment with them for two years before they vacated or passed away, says Sam Himmelstein, a lawyer at the firm Himmelstein, McConnell, Gribben & Joseph who represents residential and commercial tenants and tenant associations.

“A lot of people believe if they grew up in the apartment or lived there on and off, they can succeed the relative who is on the lease,” Himmelstein says. “In reality, none of that really matters, because to be able to succeed, the only relevant period is the two years immediately preceding the tenant’s death or vacating of the apartment.”

An exception is for occupants who are over the age of 62 or are disabled—in their case, there is a one-year required occupancy period prior to the tenant leaving. And for occupants who had to leave the apartment for reasons like military service, hospitalization, or school, those absences will not interrupt the required period of co-occupancy. (For more on the rules for succession, see this previous Ask Sam column.)

To make a successful case for succession, you must be able to demonstrate you occupied the apartment for the required period of time.

“It’s all about your physical presence in the apartment, and the burden of proof is on the successor, not the landlord,” Himmelstein says. “If your grandmother did remove your name from the lease, that’s harmful to your case, as it’s an admission you weren’t living there.”

It’s also common, Himmelstein says, for family members to believe that they have been listed as co-tenants on a lease, when in fact they were simply listed on a form provided to the landlord advising that they were occupying the apartment.

If you were removed from the lease mistakenly, you can try to build a case for your succession through extensive documentation of your residence in the apartment. This may include tax returns, your driver’s license, voter registration, and credit card and bank statements that show you made purchases in the building’s neighborhood.

One factor on your side is that since the major changes to New York's rent laws in 2019, many landlords are not bothering to fight succession cases.

“They can’t de-regulate apartments anymore—they can only raise the rent by a small amount, so there’s no economic benefit to them to fight a succession case,” Himmelstein says. “The exception is in co-op or condo buildings, where the stabilized apartment will be deregulated immediately upon the tenant vacating—there is some pushback from landlords in those cases.”

If you’re expecting resistance, hire an attorney to help you with organizing all the necessary documents and making a written request to the landlord for your succession rights.

“A landlord who turns down the request has to bring an eviction case against the successor when the tenant’s lease expires, at which point the tenant can interpose a succession defense,” Himmelstein says. “If the court rules against them they can be evicted, but if they win, not only can they stay, but they may be able to recover their legal fees, if the tenant’s original lease had a legal-fee clause.”

Note that these cases often take a couple years to be resolved in the courts, so whatever the result, you won’t be kicked out of the apartment in the immediate future.

Related

Ask Sam: How do I succeed a relative in a rent-stabilized apartment? (sponsored) 

Ask Sam: I've been living in my mom's stabilized apartment, but never put my name on the lease. Can I claim succession rights? (sponsored)

Ask Sam: Will I lose my rent-stabilized apartment if I have to leave town to care for a sick relative? (sponsored) 

Ask Sam: What are the rules for succession in Mitchell-Lama housing? (sponsored) 

Read all our Ask a Renters Rights Lawyer columns here.


Sam Himmelstein, Esq. represents NYC tenants and tenant associations in disputes over evictions, rent increases, rental conversions, rent stabilization law, lease buyouts, and many other issues. He is a partner at Himmelstein, McConnell, Gribben & Joseph in Manhattan. To submit a question for this column, click here. To ask about a legal consultation, email Sam or call (212) 349-3000.

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