Taking over a rent-stabilised apartment: succession rights

What succession means

If the tenant named on a rent-stabilised lease has permanently left the apartment, a member of their family who lived there with them as a primary residence for long enough is "entitled to be named as a tenant on the renewal lease" (9 NYCRR §2523.5(b)(1)). In a rent-controlled apartment the equivalent is protection from eviction (HCR Fact Sheet #30).

The tenant counts as having permanently vacated when they have permanently stopped living there. It doesn't count against you that the tenant kept paying the rent or signing renewal leases after they left (§2523.5(b)(2)).

Outside rent control, rent stabilisation and other housing under a regulatory agreement, the Attorney General notes that family members generally have no right to take over a tenant's lease (NY Attorney General). Not sure your apartment is stabilised? Here's how to check.

Who counts as family

The Code's definition has two parts (9 NYCRR §2520.6(o)):

• Relatives. The tenant's spouse, 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.
• Anyone else living with the tenant in the apartment as a primary residence "who can prove emotional and financial commitment, and interdependence" with the tenant.

Nieces, nephews, cousins, aunts and uncles aren't on the list of relatives, so they would need to qualify under the second part, like a partner or a close friend.

Partners and other non-traditional family members

For someone outside the list of relatives, no single factor decides it. The Code lists evidence that may be considered, without limit (§2520.6(o)(2)):

• how long the relationship has lasted;
• sharing, or relying on each other for, household expenses and other necessities;
• mixed finances: joint bank accounts, property, credit cards or loans, or a shared household budget for government benefits;
• family-type activities together, such as family functions, holidays and celebrations;
• formal legal ties: wills naming each other, powers of attorney, authority to make health care decisions for each other, a domestic partnership declaration, or serving as the other's representative payee for benefits;
• presenting yourselves as family to relatives, friends, the community or religious institutions;
• regularly performing family functions, such as caring for each other or each other's extended family;
• any other pattern of behaviour showing the intention of a long-term, emotionally committed relationship.

Evidence of a sexual relationship is never required or considered (§2520.6(o)(2); HCR Fact Sheet #30).

How long you must have lived there

You must have lived with the tenant in the apartment as your primary residence for at least two years immediately before the tenant permanently left. If you are a senior citizen (62 or older, as HCR defines it) or a disabled person, the minimum is one year (§2523.5(b)(1); HCR Fact Sheet #30).

If the tenancy itself, or your relationship with the tenant, began less than two years (or one year) before they left, living there from the start of the tenancy or the relationship is enough (§2523.5(b)(1)).

For this rule, a "disabled person" has an impairment from an anatomical, physiological or psychological condition, other than addiction to alcohol, gambling or a controlled substance, that is demonstrable by medically acceptable clinical and laboratory techniques, expected to be permanent, and substantially limits one or more major life activities (§2523.5(b)(5)).

Time away doesn't break the period if you were temporarily away because you were on active military duty, a full-time student, kept away by a court order that isn't about the lease or grounds for eviction, working somewhere that required you to relocate temporarily, or in hospital for treatment. HCR can accept other reasonable grounds if you apply (§2523.5(b)(3)).

Showing it was your primary residence

Both you and the tenant need to have lived there as a primary residence. The Code lists evidence that can count against an apartment being someone's primary residence, while saying no single factor decides it (§2520.6(u)):

• giving another address as your residence on a tax return, vehicle registration, driving licence or other document filed with a public agency;
• voting from another address;
• living in the apartment for less than 183 days in total in the most recent calendar year, apart from the temporary absences the Code allows;
• subletting the apartment.

In practice, the people who keep their claim simple are the ones whose official paperwork matches where they live. Tax returns, a driving licence or state ID, voter registration, bank and credit card statements, utility bills, mail and medical records all at the apartment's address, over the whole period, are the kind of documents to keep. That list is practice, not a rule: the Code doesn't say which documents you must have.

What a landlord may ask for

There is an official form for telling the owner who lives with the tenant: HCR form RA-23.5, the "Notice to Owner of Family Members Residing with the Named Tenant". The tenant may send it at any time. The owner may ask for it at any time, but no more than once in any 12 months (HCR Fact Sheet #30; §2523.5(e)).

For each person it gives:

• whether they are a family member as defined above;
• whether they are, or after the minimum period may become, entitled to be named on a renewal lease, and the date they began living there as a primary residence with the tenant;
• whether they are a senior citizen or a disabled person.

Sending it matters. If the tenant doesn't give the owner this information, whether or not the owner asked, anyone left off it who later claims succession must prove their right (§2523.5(e)). The Attorney General suggests tenants may wish to send the notice so the landlord knows who lives there (NY Attorney General). Keep a copy and proof of when it was sent.

Separately, the state's roommate law already requires a tenant to tell the landlord an occupant's name within 30 days of them moving in or of the landlord asking; see roommates and sublets.

Getting the lease in your name

Succession works through the renewal lease. When the owner sends the renewal offer, which must come between 150 and 90 days before the lease ends, a qualifying family member has the same 60 days from service of the notice as the tenant to accept it (§2523.5(a) and (b)(4)).

In practice the steps are:

1. Write to the owner when the tenant has died or moved out for good, say that you claim succession, and ask to be named on the renewal lease. Send it in a way you can prove.
2. Keep paying the rent, and keep records of every payment.
3. Gather your evidence: proof of your relationship (or of the factors above), and proof that you lived there for the whole qualifying period.
4. If the owner refuses or doesn't answer, get advice. HCR's Office of Rent Administration answers questions online (HCR rent), and a tenant lawyer or legal services group can advise on your facts.

The steps are practice, not law; the rights they protect are the Code's. If the owner starts a case to recover the apartment, succession is something you raise there, which is why the evidence matters.