Succession rights
A number of investors asked me if anyone at the choice of current tenant can take over the lease on a rent stabilized or controlled apartment in NYC, regardless if she/he is a family member or has stayed in the unit as her/his primary residence. This is obviously a very important question for investors to assess their assumption and risk of their investment in such property. Here is some information that could help answer the question.
The New York State Rent Stabilization Law gives certain occupants of rent stabilized or controlled apartment the “succession rights” to the unit. You can find the details from DHCR’s website here. To qualify for the succession rights, there are a few conditions that have to be met:
- The apartment
- The primary tenant on the lease
- The occupant claiming succession
- Minimum co-occupancy period
The apartment
The apartment needs to be rent stabilized or controlled unit regulated by NYS Rent Stabilization Law. To find out if your building has any RS or RC unit, you can follow the steps in my previous post (in Step 3). Generally, you will know if your apartment is a RS or RC unit from your lease. The landlord is legally required to disclose this information in the lease.
The primary tenant on the lease
For any occupant to succeed and take over the lease, the primary tenant either died or has permanently vacated the apartment.
Prior to actual succession, the primary tenant can but is not required to formally notify the owner of a family member(s) future possibility of succession rights by filling out DHCR 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.”
However, the primary tenant cannot grant or convey the lease succession rights simply through a will. There are a set of requirements regarding the occupant claiming succession as well as minimum co-occupancy period.
The occupant claiming succession
The occupant claiming succession can be family members or non-traditional family members. Traditional family members typically include parents, spouse, children, etc. You will need to prove the relationship using birth certificate, marriage certificate, adoption record, etc.
For non-traditional family members, such as unmarried couple, you will need to “prove emotional and financial commitment and interdependence between such person(s) and the (primary) tenant”. The proof can be joint bank account, credit cards, utility bills, medical insurance, life insurance listing each other as beneficiary. Proof can also be family vacation or party photos, letters, postal cards or gifts. Other proof can be picking up kids from school, attending church together, or listing each other on their wills.
Minimum co-occupancy period
The occupant claiming succession needs to show that she/he lived in the apartment as the primary residence for two years prior to the death or move-out of the primary tenant.
If the person asserting succession rights is disabled or at least 62 years of age, 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
How do you claim succession rights
Succession rights can only be claimed when the primary tenant dies or vacates the apartment. At that time, the occupant 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.
The apartment needs to be rent stabilized or controlled unit regulated by NYS Rent Stabilization Law. To find out if your building has any RS or RC unit, you can follow the steps in my previous post (in Step 3). Generally, you will know if your apartment is a RS or RC unit from your lease. The landlord is legally required to disclose this information in the lease.
The primary tenant on the lease
For any occupant to succeed and take over the lease, the primary tenant either died or has permanently vacated the apartment.
Prior to actual succession, the primary tenant can but is not required to formally notify the owner of a family member(s) future possibility of succession rights by filling out DHCR 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.”
However, the primary tenant cannot grant or convey the lease succession rights simply through a will. There are a set of requirements regarding the occupant claiming succession as well as minimum co-occupancy period.
The occupant claiming succession
The occupant claiming succession can be family members or non-traditional family members. Traditional family members typically include parents, spouse, children, etc. You will need to prove the relationship using birth certificate, marriage certificate, adoption record, etc.
For non-traditional family members, such as unmarried couple, you will need to “prove emotional and financial commitment and interdependence between such person(s) and the (primary) tenant”. The proof can be joint bank account, credit cards, utility bills, medical insurance, life insurance listing each other as beneficiary. Proof can also be family vacation or party photos, letters, postal cards or gifts. Other proof can be picking up kids from school, attending church together, or listing each other on their wills.
Minimum co-occupancy period
The occupant claiming succession needs to show that she/he lived in the apartment as the primary residence for two years prior to the death or move-out of the primary tenant.
If the person asserting succession rights is disabled or at least 62 years of age, 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
How do you claim succession rights
Succession rights can only be claimed when the primary tenant dies or vacates the apartment. At that time, the occupant 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.
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