Does Elderly Life Partner Have Succession Rights?

Q A tenant has just notified us that his girlfriend has been an occupant “domestic partner” for the past year by recently filing the “Notice to Owner/Succession Rights” DHCR form. The tenant is an 89-year-old rent-controlled tenant in a Mitchell-Lama building, and his 72-year-old girlfriend moved in with him a year ago. She gets her mail delivered there, and she pays for some household expenses, but they do not share a bank account or have any other legal or financial relationships. Does his girlfriend have succession rights to the apartment?

A Maybe. According to attorney Peter Schwartz, there are not sufficient facts in the question to definitively state whether the girlfriend would be able to establish a right of succession. But here are some broad principles that may help you see how a court would determine succession rights.

Here, after the tenant permanently vacates the apartment, the girlfriend would have to be either a family member or prove an emotional and financial commitment and interdependence between herself and the tenant. Typically, a girlfriend must reside with the tenant for at least two years prior to the tenant's death or departure. However, in this situation, the girlfriend needs only to have lived with the tenant as a primary resident for at least one year, because the girlfriend is a senior citizen, age 62 or older.

The regulations governing succession rights to a Mitchell-Lama apartment are similar to those relating to rent-stabilized and rent-controlled accommodations. If the girlfriend marries the tenant, she becomes a family member. If not, the regulations contain factors to show emotional and financial commitment and interdependence, which include the income affidavit filed by the tenant and may include:

• Longevity of the relationship;

• Sharing of or relying upon each other for payment of household expenses;

• Intermingling of finances, such as joint bank accounts, property, credit cards, etc.;

• Engaging in family-type activities;

• Formalizing legal obligations to each other such as executing wills naming each other as executor and/or beneficiary;

• Holding themselves out as family members to others;

• Regularly performing family functions such as caring for each other; and

• Engaging in any other pattern of behavior that shows the intention of creating a long-term, emotionally committed relationship.

Additionally, under the Mitchell-Lama regulations, proof of residency requires that the girlfriend be listed on the tenant's annual income affidavit and/or the filing of the Notice of Change to Tenant's Family as having resided in the apartment, together with other evidence, such as certified copies of tax returns, voting records, motor vehicle registration and driver's license, bank accounts, insurance policies, etc.

In one recent case, a tenant's life partner was able to show the court that she qualified as a nontraditional family member. The owner sued to evict her after the rent-controlled tenant died. She had lived with the tenant as his life partner for 20 years before the tenant died. But the owner argued that the occupant and tenant did not intermingle their finances.

The court ruled for the occupant after a trial. While there was little financial commingling between the tenant and occupant, neither had much money, and they shared household expenses. The tenant had also maintained separate finances in his prior marriages. The occupant showed that she and the tenant were committed to sharing every aspect of their lives together, living as a family at the apartment. They vacationed together, spent leisure time with family and friends as a couple, and spent most of their free time together. The tenant's printed obituary and condolence cards sent after his death referred to the occupant as his life partner. Greeting cards the tenant sent to the occupant over a number of years also demonstrated that they were in a committed relationship. They also cared together for the tenant's son from a prior marriage. The occupant proved that she qualified as a nontraditional family member entitled to succession rights under Rent Stabilization Code Section 2204.6(d). The case was dismissed, and the owner was ordered to give the occupant a renewal lease in her own name [Barnard College v. Ribowsky, May 2009].