Follow Your Policy to Ward Off Remaining Family Member Grievances

Occasionally, after the death of a resident or head of household, a remaining family member will claim succession rights to the subsidized apartment. According to HUD, a remaining household member is one in which the individual is of legal contract age under state law and was a party to the lease at the time the tenant died [HUD Handbook, par. 3-16(B)(1-2)]. Section 202 and 811 sites have additional succession requirements. For these sites, managers should refer to HUD Handbook 4350.3, paragraph 3-16(B)(3).

It’s best to have clearly written policies and procedures regarding occupancy and succession of remaining family members. Many remaining family members will claim that the head of household intended to add them to the lease, but unless policies are strictly followed, courts will rely on written consent requirements. In other words, if you’re dealing with a remaining family member grievance, you don’t have to base your decision on the decedent’s supposed verbal wishes that a nonresident family member succeed in the lease.

Manager Didn’t Follow Proper Procedure

In one case, a daughter moved into her mother’s housing unit under the control of the New York City Housing Authority (NYCHA) when her mother began to show signs of dementia. After her mother died, the daughter claimed succession rights to the unit. She claimed that her mother had advised the site manager that she had moved in. The daughter produced documents showing that, as of 2010, she used her mother’s address for her tax returns, her New York State identification, and her pension plan, and that she placed the cable account for the apartment in her own name.

The daughter testified that, at a meeting in July 2011, she handed the manager her mother’s completed “Permanent Permission Request” form. In the form, the mother asked that the daughter be added to the household, and stated, “I am disabled and no longer able to live alone. I need my daughter to help me day and night.” The daughter testified that at the time of the meeting, her mother “had a lot of lucid moments,” her dementia “wasn’t so bad,” and she knew what she was doing when she asked to add the daughter to her household. She gave the manager her pension paystub to document her financial eligibility.

The manager handed the documents back to the daughter and said that she “can’t go on the lease. . . . but I know that you’re there, you know, everything is fine the way it is.” The manager also advised the daughter and her mother not to add the daughter’s information to the annual income affidavits.

The manager didn’t give the daughter and her mother a written decision with respect to the request. This wasn’t consistent with the PHA’s policies, which require that the manager approve or deny a permanent permission request in writing. A hearing was conducted, and the hearing officer denied the daughter’s remaining family member grievance because a “tenant who wishes to have an additional person join or re-join the household on a permanent basis must submit a written request to the development manager and receive written approval.”

The daughter sued, challenging the hearing officer’s determination. A New York appellate court ruled in favor of the daughter and sent the case back to the PHA to consider whether she’s excused from the written consent requirement [Matter of Porter v. NYCHA, February 2019].

Strictly Follow Your Policy

In another case, a remaining family member tried to argue that his mother’s illness prevented her from submitting the proper paperwork to have him rejoin the household and be added to the lease. The mother hadn’t listed him as an occupant on any income affidavits, and he didn’t have written permission from management to rejoin his mother’s household at the time of her death.

In this case, the court sided with the hearing officer’s decision. “None of these grounds states a basis for reversing NYCHA’s decision to deny [son’s] remaining family member grievance,” the court wrote. “[The son] acknowledges in his petition that his mother never submitted a permission request for him to rejoin her household” [Matter of Lara v. NYCHA, October 2012].

In the examples above, one manager didn’t provide a written decision after a household member requested her daughter be added to the lease and, in the other, the son wasn’t able to show that his mother ever made the request in the first place.

To make sure your policy covers all the bases, you can compare your policy with our Model Policy: Adopt Comprehensive Written Succession Policy, which is based on NYCHA’s Occupancy and Remaining Family Member Policy. In this policy, gaining succession as a remaining family member requires the occupant to:

• Move lawfully into the apartment;
• Qualify as a specified relative of the tenant of record;
• Remain continuously in the apartment for at least one year immediately before the date the tenant of record vacates the apartment or dies; and
• Be otherwise eligible for public housing under NYCHA’s rules and regulations.

For the first requirement, an occupant moves in lawfully if he:

• Was a member of the tenant’s family when the tenant moved in and never moved out;

• Becomes a permanent member of the tenant’s family after moving in (or after moving back in) as long as the tenant of record seeks and receives NYCHA’s written approval; or
• Is born or legally adopted into the tenant’s family and thereafter remains in continuous occupancy up to and including the time the tenant of record moves or dies.