I live in a rent-stabilized apartment. Am I able to state who can live in my apartment when I die?
Rent-stabilized and rent-controlled apartments in the City of New York are interesting “animals,” so to speak. A relatively recent New York Court of Appeals case of Amy L. Roberts v. Tishman Speyer Properties in connection with the Peter Cooper Village and Stuyvesant Town apartments put a spotlight on rent-stabilized apartments. When dealing with these types of apartments, what it is critical to document and be able to prove your primary residency in the apartment, and to document your spouse’s, domestic partner’s, or child’s residence in the apartment to protect their succession rights.
Rent-stabilized and rent-controlled apartments are governed by strict rules regarding residency and occupancy of the apartment. You need to be diligent in protecting your own rights and the rights of your successors.
Currently, most family members of a tenant can have a right to a renewal lease or protection from eviction when the primary tenant dies or permanently leaves the apartment. However, the person terminating the lease or who has died must have been a qualified primary tenant.
What is a qualified primary tenant? A qualified primary tenant is someone who uses the apartment as the primary residence, and whose household income is under $175,000 for the two consecutive years prior to vacancy or termination or death. The rent of the apartment must still be under $2,000.
How do you prove primary residence? In the same manner as the successor will have to prove residence, such as bank records, debit card purchases, doctor’s visits, library books, and phone records, all of which can help determine where you actually were and where you habitually are located. (A good example of this was a recent dispute between Zephyr Teachout and Andrew Cuomo regarding the Democratic primary — he challenged her residency qualifications, even bringing her grocery shopping habits into question!) Other questions are: where is your car registered? Where do you file taxes? What does your driver’s license say? Where do you vote? Where do you go to the gym? Which local Starbucks do you habit? What does your EZ Pass or MetroCard say? Where is your synagogue or church? Where do your kids go to school?
The main issue is providing evidence and indicia of your day-to-day life. Caution is advised here; since today everything is digitized, many apartment houses have card-swipe entry that tracks dates and times of ingress, if not egress. This can be used by a landlord to thwart any contention that you really lived in the apartment 183 days in the year.
Of course, the best evidence when faced with a residency question is a RA-23.5 form: Notice to Owner of Tenant Who May be Entitled to Succession Rights. You can voluntarily inform the landlord of the succeeding tenant’s occupancy or the owner can request one every 12 months. The form can identify if the person is a family member, if the person may become entitled to be named as a tenant on a renewable lease or become entitled to protection upon passage of applicable minimum period of required residency; date of commencement of person’s primary residence with the tenant; if the person is a senior citizen or disabled.
Failure to provide the RA-23.5 information shall place on all such persons whose names were not submitted and who seek to exercise the right to be named as a tenant on the renewal lease or protection from eviction the affirmative obligation to establish such right.
Who is a qualified tenant in succession? There is a limited class of persons that can inherit a rent-stabilized apartment:
• Parents (stepparents) and mother-in-law or father-in-law.
• Spouses (husband and wife).
• Siblings and step-siblings (but not necessarily siblings-in-law unless it meets the catch-all).
• Children, stepchildren, and in-laws.
• Catch-all: “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.”
The catch-all provision can arguably apply to domestic partners; children of domestic partner or spouse who has not yet been biologically adopted; nieces, nephews, uncles, aunts, great-aunts, and cousins who meet the criteria; or even close family friends. However, it would have to be something more than just a “roommate” situation. Nieces, nephews, uncles, aunts, great-aunts, and cousins are not necessarily entitled to succeed to the apartment by virtue of the blood relation, but can still qualify for the catch-all.
The qualified tenant in succession’s right to a renewal lease or protection from eviction is dependent on that person having resided with the tenant as a primary resident in the apartment for two consecutive years immediately prior to the death of (or permanent leaving of) the apartment by the tenant. If the qualified tenant in succession was in military service, hospitalized, enrolled as a full-time student, or temporarily relocated for work, the two-year period is not interrupted and there is an effective “toll.”
Alison Arden Besunder is the founding attorney of the law firm of Arden Besunder P.C. You can find her on Twitter @estatetrustplan and at www.besunderlaw.com.