"Succession rights" is shorthand for the provisions of the rent-stabilization and rent-control laws which, in certain circumstances, permit family members of tenants who die or permanently vacate their apartments to take over the apartment or succeed to the tenancy in their own name.
The "Rent Regulation Reform [sic] Act of 1997" restricts these succession rights in two important ways: It reduces the categories of family members who may take over an apartment, and it allows massive vacancy increases if an apartment is passed on more than once.
Family Members
Under prior law, a broad range of family members could succeed to a tenancy, provided they occupied the apartment as their primary residence for at least two years immediately before the "tenant of record" died or moved (in certain instances that period of may be less). The new law removes aunts, uncles, nieces and nephews from the list of relatives eligible to take over an apartment, limiting succession to parents, children, stepchildren, step-parents, in-laws, spouses, siblings, grandparents, and grandchildren.
Despite repeated threats from State Senate Majority Leader Joseph Bruno, the new law preserves the right of "non-traditional family" members, such as gay and lesbian partners, unmarried couples, or other people who can show the emotional and financial interdependence of a family relationship.
Rent Increases
Under the old law, when a family member succeeded to a tenancy, she or he assumed the lease at the same base rent and was not charged any extra increases as a new tenant. This rule applied regardless of the number of times different family members succeeded to the tenancy.
The new law limits this rule to a single succeeding tenant. If this new tenant then passes the apartment on to another family member, the next family member can keep the apartment but must pay a hefty rent increase. That tenant will be subject to the 20% vacancy increase, plus whatever other increases the landlord could charge if the apartment were vacant. This will dramatically increase rents for the second generation of succeeding tenants.
Unresolved Questions
The succession-rights amendments raise at least two unresolved legal questions. First, are the changes retroactive? What would happen, for instance, if a niece lived together with her aunt, the tenant of record, for more than two years and the aunt died on June 15, 1997, before the new law went into effect? Under current law, a succeeding family member’s rights "vest" or become effective on the date the tenant dies or moves. Thus, it seems likely--but is far from certain--that a court would consider the niece’s rights under the old law and rule in her favor.
Second, can the newly excluded family members argue that they are entitled to succession rights as non-traditional family members? What if the aunt from the prior example dies on Oct. 16, after the new law is in effect, but had cared for her niece for many years as if she were her daughter? The amendments, at first blush, would seem to exclude the niece from any succession rights. But, if the niece could show the emotional and financial interdependence necessary to prove a non-traditional family relationship, she might be able to take over the lease.
Current law recognizes that unrelated persons who are cared for by the tenants as children can succeed under the non-traditional category. If persons wholly unrelated by blood can be non-traditional family members, there does not seem to be any valid reason to exclude nieces and nephews. But, as with many elements of the new law, we must await the inevitable court battles to learn the final answer.
David Frazer is of counsel to the tenant law firm of Himmelstein, McConnell, Gribben, & Donoghue.