Can I keep my huge Mitchell Lama rental if the rest of my family moves out?

By Virginia K. Smith | May 16, 2016 - 2:59PM

If I rent a 2-bedroom or 3-bedroom in a Mitchell Lama building with my brother, his wife, and their baby, will I be able to stay in the large apartment in the event that they move out?

Your Mitchell Lama building's board has every right to make you move into smaller digs, but it's very possible they won't enforce the rules, say our experts.

"Under both the state and city Mitchell Lama rules and regulations, co-ops can enforce occupancy standards as part of their succession process, the procedure by which remaining family members can take over apartments," explains Dean Roberts, a co-op and condo attorney with Norris, McLaughlin, & Marcus. If you were to be granted succession, the building would simply have you move into a smaller apartment when one becomes available.

However, says Roberts, your co-op isn't obligated to enforce occupancy standards—how many people can reside in a certain sized apartment—and many buildings opt not to bother, since they have to enforce the policy uniformly if they decide to enforce it at all. "Very few if any co-ops apply occupancy standards on succession cases, and if the co-op wishes to do so, it must do so for every succession case," he tells us.

Bigger picture, this can result in large, subsidized apartments being occupied by just one person, which isn't ideal given the city's current housing crisis. "This is an issue under review and discussion by various government agencies," notes Roberts, citing "the classic case of the 24-year-old grandson who succeeds to a three-bedroom apartment." Lax succession rules are appropriate if the person staying behind is a spouse, notes Roberts, but not necessarily more loosely connected family members.

However, for your particular case, this means you can go ahead and move in with your brother and his family, and if they end up moving out, you'll most likely get to keep the whole place for yourself.

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