When a tenant dies leaving no roommates or successors like a spouse or family member, you may assume you have the right to take possession of the apartment immediately and change the locks. But if another occupant is living there, they may have a legal right to continue living there—at least until you can remove them through a “special proceeding.”

Consider what happened in two recent cases. An apartment occupant sued the landlord in 2022, claiming illegal lockout from the tenants’ apartment. The landlord had changed the locks after one of the tenants died and the sister of the other tenant surrendered possession pursuant to a power of attorney she had received from the other tenant. The occupant who was locked out had lived in the apartment for several years with the deceased tenant, although the parties disagreed as to the relationship between the deceased tenant and the occupant. The trial court ruled against occupant and dismissed the case, finding that she hadn’t demonstrated any possessory rights to the unit and it therefore would be futile to let her back in.

But the occupant appealed and won. Real Property Actions and Proceedings Law (RPAPL) §711, as amended by the Housing Stability and Tenant Protection Act in 2019, provides that “no tenant or lawful occupant of a dwelling or housing accommodation shall be removed from possession except in a special proceeding.” Although RPAPL §713 doesn’t define a “lawful occupant,” the statute calls for commencement of a special proceeding to remove various categories of occupants, including licensees. The lower court was incorrect to rely on “futility” as grounds to dismiss the illegal lockout proceeding since that was no longer a consideration under the amended RPAPL. The occupant lived in the apartment with the permission of a tenant and therefore was a “lawful occupant,” who must be restored to possession based on the illegal lockout [Rodriguez v. HUB BK, LLC: Case No. 2022-984-KC, 2025 NY Slip Op 25167, LVT #33817 [App. T. 2 Dept.; 7/18/25].

Similarly, in another recent case, an apartment occupant sued the landlord for illegal lockout. He claimed that he had been the tenant’s roommate, rented a room in the apartment from the tenant since 2021, and spent every night there until July 11, 2025. The tenant had died two days before the landlord came to the apartment, told him he had to leave, and changed the locks. The roommate claimed that he had a verbal agreement with the tenant and paid him $300 per month through Zelle. The tenant received Section 8 benefits and was afraid to document any lease agreement with the roommate.

The court ruled for the roommate and ordered the landlord to let him back into the apartment. The roommate didn’t raise a succession claim, but he was a “lawful occupant” in the unit when the tenant died. Under RPAPL §711, as amended by HSTPA in 2019, the only lawful way that landlord could seek his eviction was through commencement of an eviction proceeding in court [Batiz v. CSA Preserv. Partners LLC: Index No. LT001947-25, 2025 NY Slip Op 25170, LVT #33821 (Civ. Ct. Bronx; 7/25/25)].

Lesson Learned: If a tenant dies and another occupant is residing in the apartment, don’t automatically change the locks. File a special proceeding to have the occupant removed legally, according to RPAPL §713.