PHA May Have ‘Implicitly’ Approved Daughter’s Succession Rights to Unit

A daughter moved into her mother’s New York City public housing unit when the mother began to show signs of dementia. After her mother died, the daughter claimed succession rights to the unit. She claimed that her mother had advised the site manager that she had moved in and that she herself had several conversations with the manager, to the same effect, between November 2010 and July 2011. The daughter produced documents showing that, as of 2010, she used her mother's address for her tax returns, her New York State identification, and her pension plan, and that she placed the cable account for the apartment in her own name.

The daughter testified that, at a meeting in July 2011, she handed the manager her mother's completed "Permanent Permission Request" form. In the form, the mother asked that the daughter be added to the household, and stated, "I am disabled and no longer able to live alone. I need my daughter to help me day and night." The daughter testified that at the time of the meeting, her mother "had a lot of lucid moments," her dementia "wasn't so bad," and she knew what she was doing when she asked to add the daughter to her household. She gave the manager her pension paystub to document her financial eligibility.

The manager handed the documents back to the daughter and said that she "can't go on the lease. . . . but I know that you're there, you know, everything is fine the way it is." The manager also advised the daughter and her mother not to add the daughter’s information to the annual income affidavits.

Manager Puts Nothing in Writing

The manager didn’t give the daughter and her mother a written decision with respect to the request. This wasn’t consistent with the PHA’s requirements and the form itself, which require that the manager approve or deny a permanent permission request in writing.

A few days after the mother died, the daughter testified that the manager came to the unit and told her that, if she wasn’t going to move out, she needed to write him a letter stating why she should succeed to her mother's tenancy. In her letter, the daughter stated that she moved back to the unit in 2010 to care for her mother, and that, in relevant part, "I would appreciate that you acknowledge your permission and awareness of us living with my mom."

A hearing was conducted, and the hearing officer denied the daughter’s remaining family member grievance because a "tenant who wishes to have an additional person join or re-join the household on a permanent basis must submit a written request to the development manager and receive written approval." The daughter sued, challenging the hearing officer’s determination.

Court Rules in Favor of Daughter

A New York appellate court ruled in favor of the daughter and sent the case back to the PHA to consider whether she’s excused from the written consent requirement.

In reaching its decision, the court concluded that the hearing officer failed to consider the daughter’s argument that she had met her burden by showing that she had lived in the unit for the required period with the knowledge of the site manager. According to the PHA’s rules, she can qualify for succession rights by showing, in addition to meeting the financial requirements, that she resided with her mother in the unit continuously for a year or more before her mother's death, either with the PHA’s written permission or by showing that circumstances exist that relieve her of the written permission requirement.

The hearing officer didn’t address the daughter’s claim that she resided in the unit with the manager's knowledge and/or implicit approval, and thus is entitled to remaining family member status on that basis. Instead, the hearing officer rejected the daughter’s request solely because PHA hadn’t given written permission for the daughter to reside in the unit. However, in another decision, the court stated that "[o]ne type of circumstance that could be of critical importance in establishing a right to be treated as a remaining family member despite the absence of notice or written consent would be a showing that the authority was aware of the petitioner having taken up residence in the unit, and implicitly approved it" [Matter of Porter v. NYCHA, February 2019].