Opinion
251881/05.
Decided April 4, 2006.
Background
This is a licensee holdover involving premises receiving a Department of Housing and Urban Development (HUD) issued project based Section 8 subsidy which is allocated to the apartment. Respondent, represented by an attorney, answered the petition raising lack of personal jurisdiction and succession rights. The traverse was denied after a hearing and the case was then tried on the merits. This Court issued a decision after trial dated February 8, 2006 which was recalled after the Court became aware of the Appellate Term's recent decision in 2013 Amsterdam Avenue Holding Associates v. Estate of Almeda Wells, NYLJ 1/31/06, 24:1 (App Term 1st Dept). Both sides were given an opportunity to submit additional briefs.
Facts
The court finds the following facts. The premises are privately owned by petitioner but receives a HUD issued Section 8 subsidy which is project based. The tenant of record was Irene Hunter. Her original lease commenced February 1, 1977. She, as required by HUD rules and regulations, filed and signed yearly income certifications listing all family members occupying the apartment and their incomes. She last signed one in 2004. Ms. Hunter died on March 17, 2005. Respondent is the daughter of Irene Hunter. Neither the original lease nor any of the annual certifications lists respondent as a family member. Respondent's income was not used in calculating the tenant's share of the rent while she was in the apartment. Ms. Hunter never requested permission nor notified petitioner that her daughter was living with her.
Respondent moved into the subject apartment on or around August 1, 2002 to care for her mother. Petitioner concedes that respondent may have lived primarily with Ms. Hunter since August 2002 and did not object to the introduction of documents showing that she used the apartment address for Social Security statements, credit union statements, public assistance, unemployment benefits, phone accounts, voting and some W2 forms. The Court finds that respondent primarily resided with the tenant of record, her mother, for at least two years before she died.
Issue
The issue is whether respondent can succeed to this privately owned project based Section 8 apartment when she primarily resided with the tenant of record for at least two years before the tenant died although she was never listed on the lease or income certifications and never given permission to co-occupy the unit.
Discussion
The federal statute governing Section 8 benefits recognizes the entire family as the tenant and defines families as including remaining family members ( 42 USC § 1437a; Matter of Manhattan Plaza Associates v. DHPD, 8 AD3rd 111, 778 NYS2d 164 [1st Dept 2004]). The federal regulations further define the term "family" as, "A person or group of persons . . . approved to reside in a unit with assistance under the program" ( 24 CFR 982.4; 24 CFR 983.2; Sunset Housing Assoc. v. Caban, 190 Misc 2d 343, 737 NYS2d 778 [Civil Ct, Kings Co 2001]). In order to be a recognized family member, the federal regulations require that "[t]he composition of the assisted family residing in the unit must be approved by the PHA . . . The family must request PHA approval to add any family members as an occupant of the unit. No other persons [ie. nobody but members of the assisted family] may reside in the unit" ( 24 CFR 982.551 [h] [2]). Although this section is contained in the tenant based subsidy program regulations, it also applies to project based subsidized units pursuant to 24 CFR 983.2. The HUD Occupancy Handbook requires an eligible remaining family member to be a party to the lease when the family member leaves the unit (HUD Hanbook 4350.3 [3-15]). The federal regulations do not mandate any specific procedure for evicting tenants in Section 8 apartments ( see In the Matter of Manhattan Plaza Associates v. DHPD, supra). The respondent did not take occupancy with petitioner's approval and was never listed on the lease or annual certification forms, although she primarily lived with the tenant for at least two years before the tenant died.
Respondent argues that her failure to be on the certifications is but one factor to be considered. Citing Morrisania II Associates v. Harvey, 139 Misc 2d 651, 527 NYS2d 954 (Civil Ct, Bx Co 1988) and NSA N. Flatbush Assoc v. Mackie, 166 Misc 2d 446, 632 NYS2d 388 (Civ Ct, Kings C. 1995), respondent urges that she must only show that she lived with the Section 8 tenant of record as a family unit. Subsequent to these lower court decisions, the Court of Appeals in Evans v. Franco, 93 NY2d 823, 687 NYS2d 615 (1999), held that the failure to be certified as a family member precluded an occupant from succeeding to a Section 8 tenant based subsidy and no hearing was necessary to determine the succession claim. Evans involved a tenant based subsidy and this distinction was found to be significant in the case of Greene Avenue Associates v. Reape, 182 Misc 2d 379, 697 NYS2d 913 (Civ Ct, Kings Co 1999), where the court found that failure to be listed on the income certifications was only one factor to be considered. Since the federal regulations do not contain eviction procedures, the court reasoned that State succession law applies. The court also made a distinction between the right to possession of the unit and the subsidy.
Petitioner relies on a number of cases which suggest that the failure to be included in the income certifications is fatal to a succession claim. In the case of Shuet Ying Gee v. NYS Division of Housing and Community Renewal, 276 AD2d 444, 715 NYS2d 52 (1st Dept 2000), the court held that DHCR's refusal to overturn a limited dividend housing company's refusal to give an occupant a lease in her own name was proper because she was never listed on any income affidavits filed with the housing development and no hearing on the facts was necessary. The Appellate Term 1st Department in Davidson v. Corbett, 190 Misc 2d 813, at 814, 738 NYS2d 813 (1st Dept 2002), similarly denied an occupant's succession claim in a project based Section 8 unit because "no approval was requested or obtained for appellant to reside in the unit as an additional family member," and the home care attendant respondent was not a non-traditional family member.
In 328-36 West 53rd Street Redevelopment v. Kosciuczuk, NYLJ 2/25/04, 27:1 (Civil Ct, NY Co), a daughter moved into a project based Section 8 unit to care for her ailing mother. She was never included in any of the income certifications and sought to succeed to the premises. The court held that the occupant could not succeed to the apartment despite her proof of co-occupancy because she was never listed on the income certifications. The court discussed the policy reasons for such a result including the possibility of fraud and the fact that possession of the unit without the subsidy would in effect remove the premises from the Section 8 program because possession and the subsidy could not be "teased apart" ( id. at 27).
The conflict between the lower court decisions was recently resolved by the Appellate Term of this department when it decided the issue of succession to a project based Section 8 apartment by someone not listed on the income certifications. In 2013 Amsterdam Avenue Housing Associates v. Estate of Almeda Wells, NYLJ 1/31/06, 24:1 (App Term 1st Dept), the court held that "the absence of [an occupant's] name on the family composition document was not fatal to her succession claim otherwise established by the trial evidence." The facts in that case are identical to this proceeding. It involved a project based Section 8 apartment. The respondent was the daughter of the named tenant, never given permission to reside in the apartment and never listed on the lease or any income certifications. The Court dismissed the licensee proceeding because it was established that the occupant "resided with her mother, the tenant of record, in this Section 8 project-based' apartment for at least two years prior to the tenant's death" ( 2013 Amsterdam Avenue housing Associates v. Estate of Almeda Wells, supra). The Appellate Term's decision controls the outcome of this case as the facts are indistinguishable. Lower courts are required to follow decisions and precedents of higher courts ( Prestipino v. Matarazzo, 99 NYS2d 606 [App Term 1st Dept 1950]).
Conclusion
Although respondent was not on the income certifications, she has shown, through the credible evidence submitted, that she is a successor tenant. Accordingly, this licensee proceeding is dismissed. The exhibits may be picked up from the clerk's office.