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Tenancy succession requires more than just co-occupancy.

A recent decision demonstrated the significant and multi-faceted burdens that a would-be successor to a rent regulated tenancy must meet.

Specifically, the Civil Court held that it is not enough for the claimant to merely demonstrate prolonged co-occupancy with the tenant. In addition to the requisite period of co-occupancy, the party alleging an entitlement to succeed must also prove both emotional and financial commitment and interdependence with the departed tenant.

In 230 Apartments Corp. v. Scherer, Judge Eardell J. Rashford found that the claimant to succession rights had demonstrated that the owner was aware of the co-occupancy by the claimant and the tenant for 18 years. The Court also found that the claimant did contribute money towards the payment of rent.

Was this enough to establish a rent to succession following the tenant's death? Judge Rashford held that it was not.

The owner, represented by Belkin Burden Wenig & Goldman, LLP (partners Martin Meltzer at the deposition and Joseph Burden at the trial), demonstrated, and the Court found, that there was "no real public representation of [the tenant/claimant's] relationship"; the tenant's daughter, rather than the claimant, controlled the tenant's finances when he took ill; the tenant's will made no mention of the claimant; the claimant was not a beneficiary under the tenant's insurance policy; and all funeral arrangements were handled by the tenant's daughter.

The Court also noted the absence of any friends or relatives being called as witnesses to corroborate the alleged relationship: specifically noting (and describing it as "strange") that the tenant's daughter did not testify on behalf of the claimant.

As a result, Judge Rashford held that "The 18-year relationship does not satisfy the statutory standard." Rather, in addition to living together, the Court stated that a person asserting succession rights must also have "established the emotional and financial commitment and interdependence" with the tenant. That requisite element having not been established, the Court awarded a final judgment of possession to the owner.

The Court's holding emphasized the procedural manner in which succession arises, and the resultant evidentiary burden that is created. These disputes tend to arise via a holdover in which the owner asserts that the person in occupancy is not the tenant and, therefore, has no entitlement to occupancy. That having been proven (generally, not an arduous task), the owner's primae facie case is complete. Succession is posed as the claimant's affirmative defense. This places the evidentiary burden to establish all of the elements of succession squarely upon the claimant's shoulders.

As was found in this case, unless all of the statutory requisites are demonstrated by the claimant (each of which must be established by the preponderance of the evidence), the succession claim must and will be denied.
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Copyright 1997, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

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Author:Belkin, Sherwin
Publication:Real Estate Weekly
Date:Nov 26, 1997
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