Succession Rights: What You Need to Know

What do you do if you’re living with someone who moves out or dies, and you want to stay in the apartment, but your name isn’t on the lease? Landlords will often try to evict you, but you may have the right by law to keep the apartment and take over the tenancy.  Below is a guide.


What are succession rights?

When a tenant in a rent-stabilized or rent-controlled apartment dies or moves, certain family members (including nontraditional family members who are not necessarily related) who have been living in the apartment have the right, under certain conditions, to take over the tenancy. 

“Succession rights” refer to these family members’ rights to be named as the primary leaseholder in future rent-stabilized renewal leases, or to become the tenant of record in rent-controlled apartments (where there are no leases).


The basics about succession rights

Succession rights in rent-stabilized and rent-controlled apartments apply to family members who are living with the prime tenant (the tenant named on the lease, or the tenant of record in a rent-controlled apartment) prior to when the prime tenant moves or dies. The definition of “family member” also includes people in “nontraditional” family relationships, including unmarried couples and people in other “family-like” relationships.

Roommates who are not in a family relationship with the prime tenant do not have succession rights, nor do subletters (legal or illegal), nor family members who are not living with the prime tenant. 

Be advised: Landlords sometimes bring eviction cases against the remaining tenant even when that person has the right of succession. If you end up in this situation, you will have the opportunity to prove your succession rights in court. In such cases, you are strongly encouraged to seek legal counsel.


Do I qualify for succession rights? 

To be eligible for succession rights, you must establish that you are a qualifying family member of the primary tenant who moved or died, and also that you lived with the prime tenant and used the apartment as your primary residence for a minimum length of time.

You must have lived in the apartment with the prime tenant for the two years immediately prior to the prime tenant moving or dying—though if you are over 62 or disabled, the requirement is only one year. You also meet the time requirement if you moved into the apartment at the beginning of the tenancy (when the prime tenant first rented the apartment), or at the beginning of your family or family-like relationship with the prime tenant.

The following relatives automatically qualify as family members for the purposes of succession:

Spouses: husband, wife

Children: son, daughter, stepson, stepdaughter

Parents: father, mother

Siblings: sister, brother, stepsister, stepbrother

In-laws: father-in-law, mother-in-law, son-in-law, daughter-in-law 

Grandparents and grandchildren

Adoptions: Courts recognize all of the family relations noted above for people who were legally adopted.

Other cases: Extended family members who are not listed above may qualify for succession rights as nontraditional family members, but their blood relationship alone may not be enough.

Nonrelatives may also qualify for succession rights if they can establish that they are a “nontraditional family member” of the primary tenant.


What qualifies someone as a nontraditional family member eligible for succession rights? 

Nontraditional family members who want to establish succession rights to an apartment must be able to prove emotional and financial commitment and interdependence with the primary tenant who moved or died. The courts consider the following factors:

• length of the relationship

• sharing of expenses other than the rent and utilities

• intermingling of finances—for example, sharing bank accounts that are regularly used by both people

• engaging in family-type activities

• formalization of legal obligations and responsibilities between the two parties (naming each other in wills, health proxies, living wills, etc.)

• holding themselves out as family members through words or acts

• regular performance of family functions (appearing at each others’ family weddings, funerals, reunions, etc.);

• any other pattern of behavior which shows tenants intended to create a long-term, emotionally committed relationship.


How do I prove “financial interdependence” as a nontraditional family member? Is it necessary to have shared bank accounts and finances with the person I’m succeeding the apartment from? 

The legal standard is that the primary tenant and the successor must have had an “emotionally and financially committed and interdependent relationship.” Often this is demonstrated by financial intermingling (such as sharing the same bank account). However, tenants have successfully demonstrated succession rights when commingling of bank accounts and other finances did not exist.


Can I add my spouse’s name to my lease without going through a succession? 

Yes. If the apartment is rent-stabilized, you can ask the landlord to add your spouse to the lease at any time. You do not have to wait for lease-renewal time. Simply write a letter to the landlord asking that your spouse be added to the lease, and send the letter by certified mail, return receipt requested, Your landlord is not entitled to charge you a rent increase for this. You can include a copy of the marriage certificate if the landlord asks for proof. 

If your landlord refuses, you can file a complaint with New York State Homes and Community Renewal, or simply keep a copy of the letter with proof of mailing for future use. The Rent Stabilization Code states that a tenant “shall have the right to have his or her spouse, whether husband or wife, added to the lease or any renewal thereof as an additional tenant where said spouse resides in the housing accommodation as his or her primary residence.”


What if my name was already on the lease? Do I still need to assert succession?

If your name was on the lease along with another co-tenant, you do not need to assert succession rights. As a co-tenant, you have the right to remain in the apartment. Your landlord also cannot increase your rent because your co-tenant died or moved out. Inform your landlord that one of the co-tenants has departed or deceased in a letter that you send by certified mail, return receipt requested. Keep a copy of the letter and of your proof of mailing. Begin paying rent in your name only, and demand that renewal leases contain only your name (or those of additional co-tenants as well, if they remain in the apartment). Do not write the name of your former co-tenant on future rent checks, leases, or other legal documents.


What can I do to prepare for a future succession? 

If you expect that in the future you will want to assert succession rights, make sure that all of your legal documents are in order. You should not list any other address as your residence. Many tenants jeopardize their valid succession claims by doing things such as registering their car in another state to avoid higher local fees and insurance rates, or signing (or co-signing) a home mortgage or apartment lease for a friend or family member who would not be able to qualify for the place on his or her own. Such actions can be costly when it comes time to assert succession rights.

If you consider yourself a nontraditional family member of the prime tenant, collect as much evidence as possible to prove that you and the prime tenant do more than just live together—that you are emotionally and financially committed and interdependent.

If the landlord asks who lives in the apartment, make sure that you are named. In rent-stabilized apartments, you should be listed as an “occupant” on renewal leases. 

However, taking additional steps to notify your landlord of your intent to assert succession rights—whether by a letter or by using the DHCR’s notification form—isn’t always a good idea. You cannot begin the legal process ahead of time. Sending a letter or a form does not prove that you have succession rights,  and it may result in scrutiny and harassment.


What’s the process for asserting succession rights?

An important first step in claiming your succession rights is to notify the landlord that the prime tenant has moved away or died. You should do this right away and claim your right to the apartment in a letter that you send by certified mail, return receipt requested. Keep a copy of the letter and your proof of mailing. If the apartment is rent-stabilized, your letter should ask for the renewal lease to be sent in your name at renewal time. (Rent-controlled tenants do not have leases, so the lease request does not apply.)

Immediately begin sending the rent under your name—either a check from your personal bank account, or a money order with your name on it. If your landlord refuses or returns rent payments from you, refuses to change the name on the renewal lease to yours, or threatens to evict you, don’t be tricked into sending payments or signing leases in the name of the departed or deceased tenant. Even if the person who moved away is still available to sign a renewal lease, do not let that person continue to sign his/her name for that apartment. Your succession claim could be harmed if a renewal lease is signed, or if rent is paid, under the name of a person who moved away or died. Unscrupulous landlords often try to trick tenants into doing this so that the succession claim is put in jeopardy.


My landlord has asked me for additional information to prove that I have succession rights. What am I required to disclose? What will be enough?

If your objective is to avoid a court case, you will want to give the landlord enough information to prove that you have a right to the apartment. You can block out any sensitive information you do not want the landlord to have (such as Social Security numbers, health history, financial information on tax returns). However, some landlords reject every succession claim as a matter of practice, no matter how clear and straightforward it is that the tenant has succession rights. They are hoping that the remaining family member will be so afraid of going to court that they will give up the apartment without a fight—and all too often, this dirty tactic works because tenants don’t understand their rights. If you have provided what you believe to be sufficient documentation of your succession claim, and your landlord is still not satisfied, you may want to consult an experienced tenant attorney and prepare for the possibility of going to court.


If I was away at college, at a work assignment in another location, or otherwise temporarily away in the time period before my family member moved or died, am I still eligible for succession?

Your succession rights will depend on whether you maintained the apartment as your primary residence. College dormitories or off-campus housing that students live in only while attending a university are in most cases temporary housing, with their New York City apartment remaining their primary residence. Housing obtained for a temporary work assignment also does not usually constitute a new primary residence. Proof of primary residency may include tax filings, voter registrations, driver’s licenses, motor-vehicle registrations, and other similar items.


I lived in the apartment for many years, and only recently moved away. Is there any way that I can retain my succession rights for my old apartment?

No. If you moved away from the apartment and established a new primary residence, you do not have succession rights to the old apartment. The two-year requirement (or one year for elderly and disabled tenants) starts over, no matter if the apartment was your only residence up to a point in your life. You must move back to the apartment of your family member for the requisite amount of time before you have succession rights again.


My landlord rejected my succession claim and is now attempting to evict me from the apartment. What should I do?

Consult an experienced tenant attorney. You can raise your claim of succession rights as a defense in the eviction case, and if you win, you can take over the apartment and the lease—but succession cases are often complicated and difficult, so you are strongly encouraged to seek legal representation. This may be costly. You might also be able to file a complaint with the DHCR.


The named tenant of the apartment died or moved away a while back. Ever since, I’ve been paying rent and/or signing leases under that person’s name, not my own. What should I do? Can I assert succession rights after the fact?

Consult an experienced tenant attorney. Waiting too long to claim succession rights or hiding that the prime tenant is no longer there can put your claim in serious jeopardy. Once this happens, the next steps you need to take will depend on the unique circumstances of your case.