In this Special Proceedings case, petitioners are the owners of the Subject Property. Respondent moved into the Subject Property with her paramour after learning she was pregnant with the subject child. Petitioner’s husband is the biological father. A New York Family Lawyer said the parties acknowledged that there are no custody or child support matters pending.
For almost 7 months, Respondent and the paramour resided together at the Subject Property. Petitioner, who resides in the property adjoining the Subject Property, was aware that respondent had moved into the property with her son. Thereafter, while the paramour was incarcerated, respondent continued to reside in the Subject Property without the co-petitioner. The child was born in February 2008 and has lived in the Subject Property with respondent since birth. Apparently, the paramour and respondent at some point had become engaged, but never married, and according to respondent, the engagement ended in April 2009. Co-petitioner, paramour has since returned to prison and, according to petitioner, it is anticipated that her son will be released in or about January 2010.
It is undisputed that respondent has continued to reside in the Subject Property uninterrupted for a period of more than two (2) years. There was no testimony that petitioner ever resided in the Subject Property. Co-petitioner is listed as the sole borrower on the mortgage for the Subject Property, and according to the credible documentary evidence, the Subject Property is the subject of a foreclosure proceeding pending in Suffolk County Supreme Court. Thereafter, Co-petitioner deeded one-half interest in the Subject Property to petitioner to assist with the mortgage arrears.
A New York Custody Lawyer said the respondent testified that although she has no obligation to pay rent or contribute to the mortgage, during some point of her occupancy while co-petitioner was incarcerated, she made a lone mortgage payment because she thought co-petitioner was going “to be able to refinance” the loan. Respondent further pays the utilities.
Respondent asserts that she is not a licensee but rather she is lawfully in possession due to the familial relationship between she and the owners of the Subject Property, the father and grandmother of Respondent’s child, and, as such, she may not be evicted in a summary proceeding. A Queens Family Lawyer said the question before this Court is given the circumstances of this case, whether Petitioners may bring a summary license holdover proceeding under RPAPL § 713(7) against the mother of co-petitioner’s son and petitioner’s grandchild in addition to the toddler child himself for the purpose of evicting them from the Subject Property. The Court answers that question in the negative.
Section 713(7) of the RPAPL provides, in pertinent part, that a summary proceeding may be brought to recover possession of real property after notice has been made if the respondent “is a licensee of the person entitled to possession of the property at the time of the license, and [a] [the] license has expired, or [b] [the] license has been revoked, or [c] the licensor is no longer entitled to possession of the property”. A Long Island Family Lawyer said it is well-established that a licensee is “one who enters upon or occupies lands by permission, express or implied, of the owner, or under a personal, revocable, non-assignable privilege from the owner, without possessing any interest in the property, and who becomes a trespasser thereon upon revocation of the permission of the privilege”
The issue of family members evicting other family members and former paramours evicting one another has been percolating throughout the State’s courts. Oddly, the pertinent statutes provide limited guidance in determining the type of relationship which is the ultimate issue in these proceedings because the type of relationship determines (a) whether a summary proceeding may be commenced and (b) the type of predicate notice required; i.e. 10-day Notice to Quit for licensees or 30-day Notice for tenants-at-will.
If the common law partners were married, there would be no dispute because a spouse cannot evict another spouse in a summary proceeding. The familial relationship has been extended to account for evolving societal lifestyle changes and insulates many parties choosing to live together from holdover license summary proceedings pursuant to RPAPL § 713.
Conversely, there have been courts that have permitted a family member or former paramour to be evicted as a licensee.
In a most recent case law, a case where a license holdover proceeding was permitted against the petitioner’s daughter-in-law, the Court poignantly distinguished the cases that permit licensee “familial” proceedings from those that do not. The Court noted that whether the parties resided together has often been the `critical factor’ in determining whether they are considered to be a `family’ for legal purposes. Another consideration was whether there was a duty of the property owner to support the alleged licensees. Encompassed in the duty to support is the parties’ social and financial dependence. The determination as to the party’s status is to be made by the court on a case-by-case basis.
In the instant matter, it is undisputed that co-petitioner and Respondent resided together in the Subject Property prior to co-petitioner’s incarceration. Moreover, the credible testimony suggested that Respondent paid the utilities but was under no obligation to pay rent or the mortgage arrears. In addition, there was no credible evidence suggesting, expressly or impliedly, that respondent’s occupancy was a leasing of the Subject Property or that she was in possession at the will of petitioners. To the contrary, the common law partners have a child together to whom they are both responsible and obligated to provide for his care and well-being. Their joint occupancy in the Subject Property began because of their son and there was no credible evidence presented from which it can be concluded that they will not continue to reside together upon co-petitioner’s eventual release from incarceration.
It was further undisputed that respondent has been residing in the Subject Property without co-petitioner for a majority of her two (2) year occupancy and there was no proof that respondent did not have exclusive possession of the Subject Property. To the contrary, the credible testimony reasonably suggested that Petitioners acquiesced to her occupancy and she continues to have exclusive possession.
Accordingly, respondent’s occupancy does not constitute a licensee agreement, and, therefore, Petitioners cannot succeed in this summary license holdover proceeding. Hence, the petitioner is dismissed.
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