“Mitchell-Lama” housing is an important component of New York City’s affordable housing scheme. It consists of low- and middle-income coops or rentals regulated by the state [through the Division of Homes & Community Renewal] or the city [through the Department of Housing Preservation & Development]. In recent weeks, there has been big news — both good and bad — as to the right of family members to succeed to a Mitchell-Lama apartment when the tenant of record leaves.
Like rent stabilization, both state and city Mitchell-Lama rules require a family member claiming succession rights to have lived in the apartment with the tenant of record for at least two years immediately prior to the date the tenant of record permanently vacates. During this period, the apartment must be the primary residence of both the tenant and the family member. Mitchell-Lama, however, imposes an additional requirement, namely, the family member must have been listed on the annual income certification form filed with the housing company. This is the form that determines the level of rent subsidy, if any, the tenant is eligible to receive. This requirement has imposed a roadblock to succession for many family members who, through no fault of their own, were not listed. Sometimes the tenant leaves them off for inappropriate reasons such as receiving a bigger rent subsidy. More often, however, the tenant is elderly or infirm and doesn’t understand the need to include the family member.
In a recent case involving a state Mitchell-Lama, however, the Court of Appeals significantly loosened the rigidity of the income certification requirement. In Murphy v. DHCR, it was conceded that the tenant’s son had lived in the apartment his entire life. His mother included him on the income affidavit for every year except the one immediately before she permanently vacated the apartment. DHCR argued that the failure to appear on this one affidavit [out of more than 30!] barred the son from claiming succession rights. Thankfully, the Court of Appeals disagreed and held that it was “arbitrary and capricious” and in contravention of the purposes of the Mitchell-Lama law to evict the son based on this one instance of a missing income certification. This now opens the door to other family members to claim succession when there’s a legitimate excuse for failing to appear on the certification.
Now, the bad news. In a parting shot from Mayor Bloomberg, the city is proposing to amend the HPD Mitchell-Lama regulations to eliminate nieces, nephews, aunts and uncles from the list of family member eligible to succeed to a tenancy. More troubling, however, it is also proposing to eliminate “non-traditional family” members and adopted children. “Non-traditional” family members include unmarried life partners and de facto parent-child relationships. And, most troubling, the proposed regulations would limit succession rights to situations where the tenant of record dies or moves into a nursing home. This will imperil succession claims for parents abandoned by a spouse where the latter happened to be the tenant of record. It would also eliminate succession if the tenant simply moves to an independent living facility or the condo in Florida. More information about the proposed regulations can be found here. If you are concerned about these rule changes, be sure to call your local City Council member and Mayor Bloomberg.