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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?

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Question:

I've lived in my mother's rent-stabilized apartment for years, and though she moved out 5 years ago, we never changed the name on the lease. (She's continued to sign renewal leases and pays the rent in her name.) The landlord recently found out, and gave us notice that they won't renew the lease, on the grounds that the apartment is no longer her primary residence. But can't I claim succession rights?

Answer:

Believe it or not, whether or not you can claim succession rights to your mother's rent-stabilized apartment may depend on which borough your apartment is in, says Sam Himmelstein, a lawyer who represents residential and commercial tenants and tenant associations

Usually, the rule for gaining succesion to a parent's apartment is fairly straightforward, as we've written previously—you need to reside in the apartment with your parent for two years before they vacate (that time shortens to one year if you're disabled or older than 62). During that period the apartment must have been your and the tenant’s primary residence. And though you did spend the requisite amount of time living with your mother before she moved out, the fact that she didn't inform the landlord—and has kept the apartment in her name—makes things considerably more murky.

"New York State is divided into four judicial departments, and two of them cover parts of New York City," Himmelstein explains. Manhattan and the Bronx are encompassed by one of these departments, while Brooklyn, Queens, Staten Island, Long Island, Westchester, Duchess, Rockland, Orange and Putnam counties are encompassed by the other. And currently, these two departments are operating based on separate precedents when it comes to cases like yours.

In Brooklyn, Queens, and Staten Island, courts currently follow the precedent set by a 2014 case called Mexico Leasing LLC vs Jones, in which a tenant had lived in his parent's apartment for 32 years, but hadn't had his name added to the required paperwork. In this case, says Himmelstein, the courts ruled that the principles of succession rules were more important than the technicalities in question. "So the successor was allowed to show that he had been there for two years before the parents left, even though they had left years earlier, which outweighed the more technical requirements," Himmelstein explains.

However, Manhattan and Bronx courts currently operate based on a 2009 case, in which a court ruled that if a tenant has continued to renew leases and pay rent in their name (as your mother has done), then they can't claim that they've permanently vacated the apartment, even if they haven't lived there for years. That would mean that the "permanent vacate" date would be at the end of the current lease, and that your two year lookback period of residence would end then.

"Here, your mother's 'permanent vacate' date would start now, and you wouldn't have succession rights since you weren’t' living there together in that two year period," says Himmelstein. "She wasn't living in the apartment, and you have to live with the parent for one or two years immediately preceding the time they permanently vacate the apartment."

"So what this means is that when you continue to renew the lease and pay the rent, you can't say that you vacated," he adds.

Currently, Himmelstein notes, the State Court of Appeals is looking at these cases with the intention of resolving this legal discrepancy between the boroughs. "Right now, the answer depends on where you live," says Himmelstein. "Pretty soon, though, we'll have a definite answer which will likely be the law no matter where you live."

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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, Donoghue & 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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