Succession rights are one of the most valuable rights created by the Rent Stabilization Law. See Rent Stabilization Code §2523.5(b). They allow an immediate family member to succeed to a rent-stabilized tenancy after the tenant “permanently vacates.” This latter phrase has been a hotly contested legal issue in the past few years. And a recent Housing Court case from Judge Steven Weissman, Park Central 1 LLC v Williams is the latest shot across the bow in the controversy.
First, some background. To obtain succession rights, the remaining family member must show that they co-resided with the tenant of record for at least two years [one year if disabled] prior to the date the latter permanently vacated. During this period, the apartment had to be both the tenant’s and the family member’s primary residence. The Code does not define permanently vacated, which means that it’s up to the courts to do so.
Over the past 10 or 15 years, a line of cases from the First Department [the appellate courts covering Manhattan and the Bronx] adopted a very strict and legalistic definition. See Third Lenox Terrace Assoc v Edwards. Most significantly, they ruled that a tenant who physically vacates but continues to sign leases or pay rent in their own name has not permanently vacated. The tenant remains in legal possession. This, however, creates a problem for the family member who is asserting succession rights, as a tenant who has physically vacated does not occupy the apartment as her primary residence. This then means that the family member cannot prove two years of co-occupancy as primary residence and, as such, could not claim succession rights.
The First Lenox rule has resulted in some very harsh outcomes. I have had clients who lived their whole life in an apartment only to lose the apartment because their parent moved to Florida but continued to sign leases and pay rent in their name. The tenant did so, not for any nefarious reason, but simply because it was a habit or, unaware of succession rights, they were afraid of approaching the landlord. Such a result is certainly at odds with the purpose of succession rights, which is to avoid displacement.
Last year, the legal tide began to turn. The Second Department [the appellate courts for the other boroughs] rejected the First Lenox interpretation. See Jourdain v DHCR. In Jourdain, the court held that signing renewal leases and paying rent did not extend the two-year period, adopting a common sensical physical definition of permanently vacate.
Jourdain created a schism between the First and Second Departments. Tenants in Brooklyn had a more favorable rule than those in the Bronx. Typically, these inter-departmental splits are resolved by the Court of Appeals in Albany. That, however, could take several more years. Into the breach, steps Bronx Housing Court Judge Weissman who flatly announced:
This Court finds [the First Lenox] decision to be wrong on the law, wrong in [its] interpretation of the plain language of the statute, contrary to the intent of the RSC, contrary to emerging law as far back as 1989 and against public policy, and refuses to follow [it].
Park Central, 62 Misc.3d 1225(A). Tell us how you really feel, judge! It’s not often one finds a lower court judge willing to call out his appellate colleagues so forcefully.
Judge Weissman seems to have started a trend, as the Appellate Term, First Department recently refused to apply the restrictive First Lenox in a case where the tenant of record had physically vacated years earlier. See BPP ST Owner LLC v Nichols. So, it does seem the tide is turning and one of the most punitive pieces of case law – one responsible for the eviction of hundreds of tenants – will soon be no more.
