One of the more significant changes of the Housing Stability and Tenant Protection Act of 2019 that largely passed under the radar is an amendment to RPAPL 711(2). Prior to June 2015, in situations where a tenant died during the term of a lease and the landlord wanted to obtain possession of the apartment, the landlord was able to commence a special nonpayment proceeding pursuant to RPAPL 711(2). Whether or not to commence that proceeding depended on the following facts occurring:
- No representative or person could have taken possession of the premises; and
- No administrator or executor could have been appointed to the estate; and
- Three days must have passed since the date of death; and
- Rent is owed to the landlord.
If all of these facts were present then nonpayment could have been commenced against a surviving spouse — or if there was none, then the next surviving issue or the next surviving distributee of the estate. As of June 2019, the Housing Stability and Tenant Protection Act removed that option for a building owner. The state legislature wanted to relieve the immediate family of the decedent from unscrupulous claims of debts owed to a landlord that were not owed by those family members. However, the amendment left building owners with a new problem: What happens to an empty apartment when the tenant dies during the term of the lease? The landlord cannot simply take back possession of the apartment. Prior to June 2019, if the apartment was vacant and the other requirements above were met, next-of-kin nonpayment pursuant to RPAPL 711(2) was available to the building owner — but now the building owner has an only a few limited options available to take possession of the premises and collect revenue for the apartment following the death of the tenant during the term of the lease.
- The building owner can hope that the family member of the decedent files to be appointed as executor or administrator and then eventually surrenders the apartment to the landlord; or
- The building owner can wait until the lease expires provided that there are no police seals or any other obstructions that allow them to legally obtain possession of the apartment; or
- The building owner can appoint the public administrator of whichever county the apartment is in, to the estate.
Obviously the only one of those options within the control of the building owner is the appointment of a public administrator. The appointment of a public administrator is a lengthy endeavor, but with guidance, the building owner can navigate the process to have legal possession of the apartment as soon as possible — and mitigate the loss of revenue that is incurring while the apartment remains in possession of the estate. One early step that a building owner can take prior to a tenant passing is to keep good records, including the tenant’s emergency contacts and family members. That way, the building owner can contact the family members and determine if they intend to create an estate, or whether those family members have any objection to the appointment of a public administrator to that estate. Keeping good records, so that there are contacts available to reach out and get further information, is important to the process of appointing a public administrator and can lead to a much faster result.
Jordi Fernandez Law, P.C.
420 Lexington Avenue, Suite 2920
New York, NY 10170