Landlord Loses Eviction Motion

Taiwanese man on student visa sought succession rights in rent-stabilized apartment after his partner’s untimely death. Ta-Wei Yu, a Taiwanese citizen, has resided in New York City since being admitted to the United States in 2005 on a still-valid F-1 student visa. While pursuing his doctorate in music, Yu entered into a committed romantic relationship with a native New Yorker. In 2012 Yu moved into his partner’s rent-stabilized apartment. His partner died suddenly in 2015, leaving Yu as the sole tenant.

The building’s landlord, Tres Realty, sued for possession of the apartment and moved for summary judgment. Yu countered that he had the right to succession in the unit as a family member. The landlord argued that Yu’s immigration status made it legally impossible for him to establish that the apartment had been his primary residence for the two years required for succession under the City’s rent stabilization code. Tres Realty cited federal immigration law which provides that an F-1 visa holder must maintain a residence in his home country that he does not intend to abandon. The landlord, in response, relied on a Court of Appeals opinion interpreting identical statutory language to mean that a B-2 tourist visa holder could not logically establish a primary residence in New York under the municipal rent regulations.

Civil Court Justice Laurie L. Lau denied Tres Realty’s motion for summary judgment, ruling that the F-1 visa did not necessarily disqualify Yu from establishing his right to succeed to the apartment. The landlord appealed.

The Supreme Court, Appellate Term, First Department agreed with Yu that his immigration status did not legally preclude succession.

The Appellate Term distinguished the B-2 visa in the earlier case from Yu’s F-1 visa. A B-2 visa is devised for those temporarily in the United States on business or vacation. By contrast, an F-1 visa is designedly long-term and indefinite, lasting for the duration of the student’s course of studies. The F-1 visa, then, reasonably allows its holders to make lasting personal commitments in their adopted hometowns. As the State Department’s Foreign Affairs Manual noted, students on an F-1 visa are likely to be unemployed, unmarried, and generally undecided about the future. They are normally without the same obligations or ties of property back home as the travelers on B-2 visas tend to have. In this case, Yu had been in a dedicated and serious amorous relationship with the decedent tenant, had planned to marry him, and lived with him for more than the requisite two years.

The relevant rent stabilization regulations do not mention citizenship or immigration status as criteria for evaluating eligibility for family member succession. Rather, the purpose of the regulations was to protect cohabitant family members from eviction in the wake of the record tenant’s death. As such, the issue of whether Yu was entitled to succession remained open and could not be decided on summary judgment.

(CIT) Tres Realty LLC v. Ta-Wei Yu, 98 N.Y.S.3d 372 (Sup.App.Term 2019).

By: Sean Scheinfeld (Sean is a CityLaw Intern and New York Law School Student, Class of 2021.)



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