Non-Traditional Natural Relatives in Regulated Housing
By Adam Leitman Bailey and Dov Treiman
When the Court of Appeals decided Braschi v. Stahl1 in 1989, many regarded it as purposed to give gay couples the same kind of protections that straight couples had in rent regulation, allowing one like a spouse to succeed to a tenancy as if he or she were a spouse to the dearly departed tenant of record. This misunderstanding of the meaning of Braschi has persisted to this very day and many, based on this misunderstanding, thought that the Legislature’s recognition of gay marriage in 2011 abolished the need for Braschi. This is not true because Braschi was neither limited to spouse-like relationships nor to LGBT people. Rather, Braschi casts legal recognition, for purposes of rent regulation, on any kind of family-like relationship between the tenant of record and some other person—whether their relationship be like that of a spouse, sibling, parent and child, or something that defies description altogether.
Thus, whatever protections Braschi thought necessary prior to gay marriage, remains unchanged by its passage. Further, even where those protections are no longer necessary, they are in fact, codified into the rent regulatory statutes and their implementing regulations and are thus apparently here to stay for a good long time.
Nearly all the rent regulations in the state of New York set forth a list of relatives who qualify for the all-important right, under the right circumstances, to succeed to a regulated tenancy. The list of automatic relatives consists of such relations as legal spouses, siblings, ancestors, and descendants. Excluded from the list are avuncular relations and cousins. All these are relatively easy to prove. However, since Braschi, the list has also included folks who live like family, called in the case law, “non-traditional family” or “Braschi family.” While case law has done well to define the qualifications of those who have no natural familial connection to each other asserting rights under this category, it has had a far more difficult time arriving at a coherent theory for people who are actual relatives, but not on the authorized list.
The mischief lies in two different standards appearing in each of the regulations.2 Introducing the idea of non-traditional family is the phrase, “emotional and financial commitment, and interdependence” (EFCI). Following this phrase comes a list of proofs of EFCI, of which the regulations specify, “no single factor shall be solely determinative.” In this regard, it is important to note that automatic relatives can live utterly independent of each other, but as long as they share a particular apartment even if they don’t co-occupy any part of it, they automatically qualify to succeed to the regulated apartment. By contrast, Braschi family must show EFCI in order to qualify.
Criteria and Factors
EFCI is one cluster of standards that the claimant to succession must prove; establishing EFCI is accomplished through a list of eight activities or behavior patterns, no single one of which is determinative. In order to understand these eight items, it is useful to refer to EFCI as the “criteria” and the eight items as the “factors.” While the word “factors” appears both in the regulations and the case law, the word “criteria” does not. Naturally, survivors seeking succession seek to apply the phrase “no single (one) of which shall be solely determinative” to the criteria, even though the regulations themselves only apply that phrase to the factors. Therein is the mischief.
The regulations specifically exclude avuncular relations and cousins from the automatically entitled category, but we can see how, of the eight factors, four of them are almost always automatically going to be present for non-qualifying consanguinous relatives:
(a) longevity of the relationship;
(d) engaging in family-type activities by jointly attending family functions, holidays and celebrations, social and recreational activities, etc.;
(f) holding themselves out as family members to other family members, friends, members of the community or religious institutions, or society in general, through their words or actions;
(g) regularly performing family functions, such as caring for each other or each other’s extended family members, and/or relying upon each other for daily family services;
Since both the statutes and regulations choose certain blood relations not to qualify for automatic inclusion, the nature of such relationships are, realistically speaking, always going to manifest these factors. Thus, were these factors to be considered in an individual factual matrix, the legislation’s goals to exclude these more distant blood relations would be defeated. Therefore, for the regulations to exclude such people from automatic inclusion in rights of succession, logically, these four factors have to be ignored and the focus has to shine on the other four instead:
(b) sharing of or relying upon each other for payment of household or family expenses, and/or other common necessities of life;
(c) intermingling of finances as evidenced by, among other things, joint ownership of bank accounts, personal and real property, credit cards, loan obligations, sharing a household budget for purposes of receiving government benefits, etc.;
(e) formalizing of legal obligations, intentions, and responsibilities to each other by such means as executing wills naming each other as executor and/or beneficiary, conferring upon each other a power of attorney and/or authority to make health care decisions each for the other, entering into a personal relationship contract, making a domestic partnership declaration, or serving as a representative payee for purposes of public benefits, etc.;
(h) engaging in any other pattern of behavior, agreement, or other action which evidences the intention of creating a long-term, emotionally committed relationship.
Of the factors, in order to establish the financial aspect of EFCI, clearly, “b” and “c” are the most important—that is, if indeed the absence of financial commitment and interdependence automatically dooms the claim to succession. And in this regard, one must distinguish between being financially interdependent and committed, and proving it. Where the would-be successor or the tenant-of-record had substantial funds and there is no paper trail of intermingled finances, this should pretty well doom any claim of EFCI. Where, however, the couple lack the proverbial pot, the would-be successor will still have to show some proof of the financial interdependence, if not necessarily paper proof. Documentation speaks to weight, not admissibility, as it were.
The leading law on this is found in Fort Washington Holdings v. Abbott.3 While Abbott spends considerable time regarding jury trial and jury instructions, one would be ill pressed to say that this is a case merely about being stuck with the jury instructions one has agreed to. The court wrote: “After all, it is settled law, and the jury charge clearly provided, that a claimed successor must establish both the emotional and financial underpinnings of his or her relationship with the tenant to qualify for eviction protection as a nontraditional family member.”
In a footnote, the Abbott court set forth:
It bears mention that respondent’s counsel attempted to argue in summation that the jurors were “not required to place the same weight on the financial” aspects of respondent’s relationship with his aunt than they were in connection with the relationship’s emotional aspects, and was correctly foreclosed from pursuing that argument, with the court reminding the jury that respondent had to prove both the “emotional aspect” and the “financial aspect” of the relationship.
However, the teaching of Abbott seems to fall on deaf ears when applied by some of the trial courts, and in this regard, it is the final paragraph of the case that strikes the key note. There, the court writes, “Our resolution of this case may not be reached through an emotional approach to the facts, but instead must rest upon valid legal analysis rooted in the record.”
Well, the Appellate Term may forbid itself to be swayed by its emotions, but the trial courts evidently sometimes see themselves quite differently as we shall see in our analysis below.
An earlier Appellate Term case, 509 Realty Co. v. Wright,4 may be more instructive than it appears at first blush in gauging EFCI. The court pointed out that “No claim or showing was made that appellant and the departed tenant intermingled their finances, formalized legal obligations or jointly owned property.” Now, while each of the respective regulations state with regard to the eight factors that “no single (one) of which shall be solely determinative” (emphasis supplied), that is not to say that the absence of the cluster of factors that speak to finances can be determinative. While Wright fails to mention, “sharing of or relying upon each other for payment of household or family expenses, and/or other common necessities of life,” in truth, the presence of such sharing or reliance is pretty meaningless. Ordinary roommates do that sort of thing routinely and no court should place much stock by it. But the absence of such sharing or reliance would be profoundly meaningful if not (only because the regulation forbids it to be so) solely determinative. However, we dare say that if that one criteria is absent at least one of the other financial criteria is always going to be absent as well. If you don’t trust your roommate to buy toothpaste, you probably don’t have a joint bank account together!
However controlling Abbott may be, at least in the First Department, it is a case that is rarely cited. Rather, the jurisprudence in the trial court decision of these cases seems to develop more around sympathy for the survivor than anything else. It is as if that is the one factor that is determinative.
Without explaining why, WSC Riverside Drive Owners v. Williams,5 the court wrote, “The fact that Respondent and Judy maintained separate finances does not warrant a different conclusion.” The only explanation is by citation to RHM Estates v. Hampshire6 and Arnie Realty v. Torres.7 In RHM, the Appellate Division acknowledged only the lack of financial intermingling, but did not at all discuss the question of financial interdependence. In Arnie Realty, the Appellate Division found that there was financial interdependence.
Also instructive in seeing this trend is the most recent decision in this area of law, Hazel Towers v. Gonzalez.8 There, the court wrote:
Contrary to Landlord’s argument that the lack of financial interdependence is fatal to González’s succession claim, statutory and judicial precedent belies that assertion, as the existence of financial commingling constitutes merely one of the factors to consider in examining the relationship. As previously stated, “no single factor shall be solely determinative.”
Note how the court has taken the criterion “financial interdependence” and set it up as the equivalent of the factor “financial commingling” without so much as mentioning that one is in the criterion list and the other is in the factor list, that one is crucial to the claim to succession and the other a mere factor to be considered. Rather, the criterion is brought under the “no single factor shall be solely determinative” rubric and thus eviscerated.
Note that this case is from the Bronx, and thus is under the jurisdiction of the First Department and does not so much as mention the controlling authority of Abbott.
It is therefore clear that when people who are actually blood relatives claim Braschi succession, controlling law requires that they show financial interdependence. But it is equally clear that the authority that says so remains unknown to much of the bar and bench and cases continue coming down as if such requirement were not in existence.
Original content here.