When a Same-Sex Couple Separates

The landlord of their rent-stabilized apartment was fully aware of the relationship for the entire time, and various documents acknowledged Mr. Pederson's occupancy and his potential rights to the apartment. In the year 2000, both men asked the landlord if they could add Mr. Pederson to the rent-stabilized lease, as would be permitted for married couples. The landlord denied this request.

In 2009, some two decades after the relationship began, it ended. Mr. Hyers, the tenant of record, moved out of the apartment, leaving Michael Pederson behind there. A rent-stabilized renewal lease had been signed several months before the parties broke up. At the end of 2009, some five months after vacating, Mr. Hyers came back to the apartment on a temporary basis. Mr. Pederson accommodated Mr. Hyers and moved across the street. Mr. Pederson left most of his belongings in the apartment. While Mr. Hyers was back in the apartment, he signed a one-year renewal lease and shortly after that, left the apartment. Mr. Pederson returned. And when the renewal lease ended, the landlord sued to evict everybody.

The landlord argued that Mr. Pederson did not have any right to be added to the lease in 2000, as he was not married to Mr. Hyers. As to succession for people who are not married, the landlord argued that this would require showing at least two years of overlapping occupancy before the permanent vacatur of the tenant of record. From the landlord's perspective, Mr. Hyers only really vacated permanently in 2011, and for the two years before that, Mr. Pederson was not living with him, as he was across the street. The landlord added that Mr. Hyers' signing of one renewal lease in 2011, after the alleged permanent vacatur, should be fatal to any claim that Mr. Hyers permanently vacated in 2009

Mr. Pederson countered that his right to succeed vested in 2009 when Mr. Hyers left. Therefore, the fact that Mr. Pederson moved across the street temporarily did nothing to take away his rent-stabilized rights that had already accrued. Mr. Pederson also argued that he was unlawfully discriminated against when his request to be added to the lease as a spouse or domestic partner in 2000 was denied.

General Rules of Succession in Regulated Apartments

To establish succession rights to a rent-stabilized apartment, a rent-controlled apartment or a Mitchell-Lama subsidized apartment, a tenant must show as a threshold matter that he is an immediate family member of the tenant of record. Spouses, children, siblings, parents, grandparents, grandchildren and step-children and step-parents typically qualify. A succeeding tenant who does not fit into one of those relationships has the right to prove the existence of a non-traditional relationship that is similar to an immediate family relationship and is generally categorized by long-term emotional and financial commitment and interdependence to each other. This standard is harder than simply proving a lineage relationship. For example, many courts have found that a documented sharing of finances may be crucial to proving the relationship, despite the fact that many people that are married can't show that. The length of the relationship can also make the proof harder than it is for, say, people who are married only briefly who nonetheless will fit the “immediate family” definition.

Once the tenant seeking succession rights establishes a family relationship, the tenant must also prove, in most cases, that he resided with the departing tenant of record for at least two years before the tenant of record permanently vacated (or only one year if the succeeding tenant is either disabled or over 62 years old), and that the apartment was their primary residence during that period. If, however, the tenant of record signed renewal leases after departing, the landlord can claim that the landlord has been prejudiced because the tenant of record did not timely alert the landlord to the potential succession claim.

Mr. Pederson's landlord argued that the execution of one renewal lease in 2011, after Mr. Hyers left, should be fatal to Mr. Pederson's succession rights. In opposition, the tenant argued that there were several cases holding that, where there was only one renewal lease signed and there was no discernible prejudice, then succession rights are not forfeited. This line of cases is particularly applicable to long-term co-tenancies. In Mr. Pederson's case, there was no dispute about the long-term emotional and financial commitment between the parties and the fact that they plainly satisfied the standards to prove a non-traditional family relationship.

Equal Protection and the Pederson Court's Decision

On July 4, 2011, New York enacted the Marriage Equality Act, which granted the right of all couples, whether the same or opposite sex, to marry. Had the statute been in force in 1993, when Mr. Pederson and Mr. Hyers had their domestic certificate ceremony, Mr. Pederson would have been added to the lease as a spouse. Mr. Pederson argued that the Marriage Equality Act should be applied retroactively, since it was a remedial statute.

Mr. Pederson also relied on New York Executive Law Section 296 2-a, which prohibits discrimination based on sexual orientation in publicly assisted housing. New York's high court, the Court of Appeals, had ruled in 2014 that rent-regulated housing is a public assistance benefit; thus Section 296 2-a would prohibit the landlord from discriminating against Mr. Pederson based on sexual orientation. Therefore, the landlord's refusal to add Mr. Pederson to the lease when he made his 2000 request was deemed discriminatory because the denial was based on his sexual orientation; had he and Mr. Hyers been an opposite-sex couple, they would have been married, and the landlord would have been required to add Mr. Pederson to the lease. See Santiago-Montaverde v. Pereira, 2014 WL6473698, 2014 NY Slip Op 08051 (Ct. App. 2014).

The Pederson court found that Mr. Hyers did vacate the apartment permanently in 2009 when he left to pursue another relationship. Mr. Hyers' return to the apartment was “only a temporary accommodation, for a limited duration, and Mr. Pederson's succession rights vested after the definitive departure of Mr. Hyers in 2009.” Thus, Mr. Pederson had lawful succession rights. Citing to Obergefell, supra, the court also found that Mr. Hyers and Mr. Pederson “were unconstitutionally denied their right to marry, which would have entitled Mr. Pederson to be added to the lease and relieve him of any obligation to prove succession rights.” Accordingly, Mr. Pederson prevailed on this ground also.

Conclusion

For New York landlords who bought buildings with rent-regulated tenants and paid a price that reflected a rent-regulated rent roll, getting back a vacancy that can lead to deregulation is often a material monetary gain. But if Obergefell is to assure the constitutional promise of liberty and equal rights to same-sex couples on the same terms and conditions as marriages between persons of the opposite sex, then the Pederson decision stands as upholding that promise when it comes to a couple's home.

Darryl M. Vernon is a partner at Vernon & Ginsburg. The firm represented the tenants in Pederson.