Suppose that, after a tenant dies or moves out, an apartment occupant asks you for a renewal lease in her own name for a rent-stabilized apartment, or for the right to continue living in a rent-controlled apartment. The occupant claims that she had been living with the tenant and that she’s entitled to pass-on rights to the apartment, based on her family relationship, or family-type relationship, with the tenant. The occupant or roommate is either one of the relatives automatically considered a “family member” for purposes of getting pass-on rights, or claims to be related as a nontraditional family member through emotional and financial commitment with the former tenant.

Are you obligated to give in to the roommate’s claim? Or, if you refuse the request and the occupant doesn’t move out, can you successfully fight the occupant’s claim in court or before the DHCR and evict her?

New York State’s succession laws for rent-regulated dwelling units acknowledge the rise of nontraditional living arrangements. For example, partners may choose to not formally marry. Or older tenants may live with adult children or other individuals with whom they have a long-term family-type relationship. To help you evaluate your situation, we’ve created a checklist based on 11 factors the courts and DHCR consider. The factors hinge on how long the occupant has lived in the apartment with the tenant and the nature of the occupant’s relationship to the tenant. Here’s what you should know.

Pass-on Basics

To get pass-on rights, the occupant must meet two qualifications. First, the occupant must meet a residency requirement—that is, she must have lived in the apartment with the tenant for a minimum length of time.

Second, the occupant must be a “family member” of the tenant as defined by the Rent Stabilization Code (Code), which applies to rent-stabilized apartments, or the NYC Rent and Evictions Regulations (rent control regulations), which apply to rent-controlled apartments. The Code and rent control regulations list certain relatives who are automatically considered “family members” for this purpose. Any other occupant—whether unrelated to the tenant or a relative (such as a niece or nephew) not on the list—must show that she’s a family member because she had a nontraditional “family-type” relationship with the tenant. The Code and rent control regulations set similar criteria for deciding whether a family-type relationship exists. 

11-QUESTION EVALUATION CHECKLIST

To help evaluate the occupant’s claim, you’ll need to know how long the occupant really lived in the apartment and the nature of her relationship with the tenant. You may need to hire a private investigator to get this information. You can also ask the occupant to give you any documents she has that show her relationship with the tenant (for example, a birth or marriage certificate, or documents showing joint finances or legal obligations).

Your next step, with your attorney’s help, is to evaluate the information you’ve gotten. Answering the following 11 questions will help you determine if you have a strong case against the occupant, or if the occupant will be able to prove that she had a family, or family-type, relationship with the tenant and is entitled to pass-on rights. With Questions #4 through #11, the more yes answers you have, the better the roommate’s chance of keeping the apartment. If the answers to those questions are mostly no, you probably have a good chance of evicting the roommate.

1. Is the occupant automatically considered a family member who does not have to prove that she had a nontraditional family relationship with the tenant (see “Relatives Who Are Automatically ‘Family Members,’” below)?

[ ] YES [ ] NO

If yes, the occupant needn’t prove that she had a nontraditional family relationship with the tenant. But the family membership still likely needs to be documented with, for example, a marriage certificate for someone claiming to be a tenant’s spouse; a birth certificate for someone claiming to be a tenant’s child, parent, or sibling; or other proof of the relationship that would automatically qualify an occupant as a listed family member. And a relative who automatically qualifies as a family member under the Code or rent control regulations still needs to meet the residency requirement to claim succession rights.

2. Before the tenant moved or died, did the occupant and tenant maintain the apartment as their joint primary residence either: (a) for at least two years; (b) for at least one year if the occupant is at least 62 years old or disabled; (c) from the beginning of the family or “family-type” relationship; or (d) from the beginning of the tenancy?

[ ] YES [ ] NO

It’s up to the occupant claiming pass-on rights to present proof of residency. If the occupant can’t show that she lived with the tenant for the required amount of time before the tenant died or moved out and that the apartment was the occupant and tenant’s joint primary residence, it doesn’t matter what type of relationship she had with the tenant; she won’t be able to get the apartment.

Example: The DHCR denied a daughter’s succession rights claim to the apartment of a deceased rent-stabilized tenant where the daughter acknowledged but never responded to the agency’s request for proof of occupancy, which included copies of a government photo ID, driver’s license, tenant’s death certificate, birth certificate showing the daughter’s relationship to tenant, income tax returns and W-2 form, payroll records, and Social Security statement [Matter of Babalola: DHCR Adm. Rev. Docket No. NM210014RT, LVT #33745 (6/5/25)].

Example: Although a former rent-controlled tenant’s roommate showed at trial that he maintained a nontraditional mother and son-type family relationship with the former tenant, he didn’t co-reside with the tenant for two years either before the termination of her tenancy or before her death because the apartment hadn’t been tenant’s primary residence for years before the landlord sued to evict her for nonprimary residence and the “son” claimed succession rights. The trial witnesses couldn’t confirm dates when they observed both the tenant and the son living together in the apartment between February 2015 and February 2017. And two years prior to her death, records showed that the tenant was living in Colombia, where she had an additional residence. The son’s right to occupy the apartment expired upon the termination of the tenancy in February 2017 [Kanter’s Realty Assoc. LLC v. Trujillo: 2025 NY Slip Op 30120((U), LVT #33571 (Civ. Ct. NY Co. 2025)].

An occupant may be able to come up with enough evidence supporting her residency claim to put the onus on you to disprove it. So, even though the occupant has the burden of proof in court, it’s a good idea for you to have evidence to show the court that the occupant hasn’t met the residency requirement. This evidence usually consists of official documents (for example, tax returns) showing another address for the occupant. Evidence also may include testimony of building employees, other building residents, and other family members.

3. Was the tenant living somewhere else while the occupant was in the apartment?

[ ] YES [ ] NO

Sometimes, the person who claims to have been an occupant lived in the apartment while the tenant lived someplace else. In this situation, the “roommate” can’t get pass-on rights because she didn’t live in the apartment together with the tenant.

Example: A woman claimed that she had a nontraditional family relationship with the tenant and was entitled to succession rights. But she rented another rent-stabilized apartment in Manhattan throughout the time that she claimed to have lived with the tenant. She even renewed the lease to the other apartment after the tenant died. In addition, her tax returns, driver’s license, voter registration, and banking and credit card statements all listed the other apartment as her address. Therefore, she didn’t prove a nontraditional family relationship [Caru, LLC v. Ratus, 2007 NY Slip Op 50280(U), 14 Misc.3d 138(A)(App. T. 1 Dept. 2007)]

4. Did the occupant have a lengthy relationship with the tenant?

[ ] YES [ ] NO

For nontraditional family members, the longer the relationship, the stronger the occupant’s case. But courts won’t award pass-on rights based on this factor alone. The relationship between the occupant and the tenant must also be characterized by an in-depth emotional and financial commitment.

Example: In one case, the occupant lived with the tenant for 35 years as a nontraditional family member. In addition to the length of the relationship, he was able to show that he had joint investment accounts with the tenant, and she left a substantial portion of her estate to him. The tenant also left $5,000 to the occupant’s sister. The tenant’s two children and her grandchild submitted sworn statements confirming that the tenant and occupant had a long-term relationship and appeared as a couple at family functions. The tenant’s grandchild considered the occupant his grandfather. And pictures of the couple at many family gatherings were also submitted to the court. The occupant submitted substantial proof that he had lived with the tenant as a nontraditional family member for many years. And so he was entitled to remain as a rent-controlled tenant [Melohn v. Franklin, 2001 NY Slip Op 50126(U)(Civ. Ct. NY Co. 2001)].

Example: However, in another case, an apartment occupant complained to the DHCR that the landlord refused to offer her a rent-stabilized renewal lease after the tenant died. She claimed she was the “daughter” and “primary health care attendant” for tenant’s physical and medical needs with uninterrupted residency in the apartment for 27 years. The landlord claimed that: (a) the tenant died in May 2020; (b) his lease expired on May 31, 2020; and (c) the tenant had lived in the unit by himself for many years. The occupant submitted a number of documents to the DHCR that were generally character references. The DHCR ruled against the occupant, whose mailing address apparently was somewhere other than the apartment. The occupant failed to prove that she either primarily resided with the tenant for at least two years before he died, or to present proof of an emotional and financial commitment and interdependence with the tenant [Matter of Solow: DHCR Adm. Rev. Docket No. KM210025RT, LVT #32059 (4/1/22)].

5. If the occupant and the tenant had more than a few financial assets, did they intermingle their finances? For instance, did they share joint bank accounts, credit cards, and loans, and own personal and real property together?

[ ] YES [ ] NO

Courts and the DHCR will consider how the tenant and occupant managed their finances. They’ll consider if there was genuine intermingling of finances. If finances, such as bank accounts, aren’t shared, you’ll have an easier time showing that there was no family-type relationship, even if the occupant and tenant seemed to have an otherwise close relationship.

Example: In one case, a girlfriend wasn’t able to prove a nontraditional family relationship. She claimed that she lived with the tenant in a nontraditional family relationship and that he intended to marry her. The trial court ruled for the owner. The girlfriend claimed that the tenant gave her money to deposit into her accounts to pay household bills, but this was insufficient to demonstrate the sharing of household and other necessary expenses, or the intermingling of finances. There also was insufficient proof of any domestic partnership [Jackson Surrey 35th LLC v. Litvinova, 2011 NY Slip Op 50594(U)(App. T. 2 Dept. 2011)].

6. Did the roommate and tenant share or rely upon each other for paying household or family expenses?

[ ] YES [ ] NO

If so, this is a sign that they did have a family-type relationship.

7. Did the tenant and roommate engage in family-type activities, such as social and recreational activities, family events, and holiday celebrations?

[ ] YES [ ] NO

The more of these activities shared by the tenant and occupant, the better the occupant’s case.

8. Did the tenant and roommate formalize their legal obligations and intentions toward each other? For example, did each name the other as executor and/or beneficiary in a will, or grant the other authority to make health care decisions?

[ ] YES [ ] NO

Courts often use this factor to distinguish a close friendship (where no pass-on rights are warranted) from a true family-type relationship.

9. Did the tenant and roommate hold themselves out as family members to others through their words or actions?

[ ] YES [ ] NO

If the occupant can get people to testify at trial that she and the tenant presented themselves as family members, this will help the occupant prove that she’s entitled to pass-on rights.

Example: In an eviction proceeding, the trial court ruled for a rent-stabilized tenant’s life partner who claimed succession rights after tenant died. Four witnesses testified for the occupant. A funeral home director stated that the occupant was listed as “friend” on the tenant’s death certificate because there was no other category since the parties weren’t married. The occupant’s daughter testified that the deceased tenant had been a father to her, she called him “dad,” and they had close family-like relationships with the tenant’s family. The occupant testified about her decades-long partnership with the tenant, that they shared expenses, parented her children together, and that she gave him daily care in the final months of his life. The court found that the relationship between the tenant and her roommate bore all the hallmarks of a marriage [Diversified Equities LLC v. Swint: NYLJ 3/6/24, p.17, col. 3, LVT #33168 (Civ. Ct. Queens Co. 2024)].

10. Did the tenant and occupant regularly perform family tasks, such as looking after each other and each other’s extended family members?

[ ] YES [ ] NO

If the tenant and roommate cared for each other as family members would, the court will be more likely to rule that the occupant and tenant shared a family-type relationship.

Example: A court ruled against a rent-stabilized tenant’s aunt, who claimed succession rights as a nontraditional family member after the tenant moved out. The aunt failed to prove an emotional and financial commitment and interdependence with the tenant required to establish she was a family member. A close friendship, by itself, isn’t sufficient to characterize a nontraditional family relationship. The tenant and her aunt saw each other only twice a year before the aunt moved into the apartment and, three years later, saw each other only a few times a year. They also talked on the phone once a month after the tenant moved out. “A lifetime relationship of casual personal contact that bookends a three-year interlude” where tenant and the aunt claimed they lived together was insufficient to prove succession rights. Tenant had moved into her grandmother’s house several blocks away after her grandmother died, filed income tax returns from that address, and kept pets there [92nd St Venture v. Corbett: 65 Misc.3d 1221(A), 2019 NY Slip Op 51779(U), LVT #30536 (Civ. Ct. NY Co. 2019)].

Example: The DHCR found that the occupant and former rent-stabilized tenant had a committed and interdependent relationship for almost five years. The occupant presented proof showing that she and tenant had close emotional and financial ties and that she lived in the apartment for at least two years as her primary residence before the tenant died in 2016. The lack of documents showing any formal legal obligations or intermingling of finances didn’t undermine the occupant’s succession claim given the hearing testimony. The occupant and her daughter took many trips with the tenant, and the occupant took care of the tenant before he died. Many tenants in the building were aware of the close relationship between the tenant and occupant, and the tenant’s parents considered the two to be husband and wife [Matter of Depew: DHCR Adm. Rev. Docket No. HP410010RP, LVT #31927 (3/23/22)].

11. Does the occupant have documents to support his claim?

[ ] YES [ ] NO

The occupant claiming pass-on rights should be able to present some documentary proof (for example, financial records, insurance policies) to support her claim that the occupant and the tenant treated each other as family members. Courts may be reluctant to award pass-on rights without this evidence, although there are instances where an occupant can demonstrate a family-type relationship without documentary evidence.

Example: A trial court and appeals court ruled against an apartment occupant who claimed nontraditional family member rights after rent-stabilized tenant died. There was no credible documentary or other proof that the occupant and tenant held themselves out as a family unit, jointly celebrated holidays with other family members, intermingled finances, or formalized legal obligations. There were no shared bank accounts, bank cards, credit cards, or loan obligations. The occupant didn’t receive the tenant’s Social Security, wasn’t a dependent on the tenant’s tax returns, and wasn’t a beneficiary of the tenant’s will, life insurance, or retirement account. The occupant admitted she didn’t take care of the tenant’s finances and didn’t know who did. The tenant had in fact given his sister power of attorney and appointed his sister as the executor of his estate. And while the occupant claimed that she was present for the tenant “24/7” when he became ill, the occupant was employed outside the home, and the tenant’s friends helped take care of him [206 W. 89th St. LLC v. Morgan: 2020 NY Slip Op 50249(U), LVT #30696 (App. T. 1 Dept. 2020)].

Relatives Who Are Automatically “Family Members”

Here’s a list of relatives who are automatically considered “family members” of a tenant. If one of these listed relatives remains in an apartment after a tenant dies or moves out, the relative doesn’t have to prove any special “family-type” relationship with the tenant, but does have to prove that they met the residency requirement to keep the apartment:

• Spouse;
• Son;
• Daughter;
• Stepson;
• Stepdaughter;
• Father;
• Mother;
• Stepfather;
• Stepmother;
• Brother;
• Sister;
• Grandfather;
• Grandmother;
• Grandson;
• Granddaughter;
• Father-in-law;
• Mother-in-law;
• Son-in-law; and
• Daughter-in-law

Definition of Senior Citizen

Under rent control and rent stabilization, a senior citizen is a person who is 62 years of age or older. Under succession rules, an automatic or nontraditional family member claiming pass-on rights need show only that they lived with tenant in the apartment for one year, rather than two years, before the tenant died or moved out.

Definition of Disability

Under rent control and rent stabilization, a disabled person is one who has an impairment that results from anatomical, physiological, or psychological conditions, other than addiction to alcohol, gambling, or any controlled substance, which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques, and which substantially limit one or more of that person’s major life activities. Under succession rules, an automatic or nontraditional family member claiming pass-on rights need show only that they lived with tenant in the apartment for one year, rather than two years, before the tenant died or moved out.