Can I Evict a Family Member in NYC? | law office of richard kistnen

Can I Evict a Family Member in NYC?

Angry Man Pointing Finger

Landlord-tenant disputes come in all shapes and sizes. A very interesting circumstance is when a family member is looking to evict another family member. So, let’s look at the question:

Can I evict a family member in NYC? If so, how can I evict a family member in NYC?

In the five boroughs, the housing court, which is located within the civil court of each borough, has jurisdiction over landlord-tenant matters. If you’re looking to evict someone, more likely than not your case will be heard by the housing court. Most eviction proceedings fall under one of two types of cases: a holdover proceeding or a nonpayment proceeding.

Types of Eviction Cases: Holdover vs. Nonpayment

In general, a holdover proceeding is an eviction case brought to evict a tenant where the tenant has stayed over after the expiration of a lease, or where the tenant has been alleged to have breached a lease and remained in possession of a premises after termination of that lease.

A nonpayment proceeding, on the other hand, is an eviction case brought where it is alleged the tenant has failed to properly pay the rent under the terms of a lease.

The Quirkiness of Evicting a Family Member

From the start, cases where one family member wants to evict another family member are interesting because the law recognizes that, inherently, there are nuances at work in the family context that don’t exist between arms-length strangers. For instance, an adult child that moves into their parents’ house with a spouse and their child comes with many more complicating factors when compared to an arms-length couple moving into an apartment owned by the same people.

Additionally, the law recognizes that there are certain duties that exist by and between family members. For instance, there is a presumed duty of spouses to support each other, a presumed duty of parents to provide care and shelter for their children.

The Birth of the Family Exception to Evictions

In the area of evictions of family members, for over fifty years the seminal case has been Rosenstiel v. Rosenstiel, 20 A.D.2d 71 (N.Y. App. Div. 1963), where the Appellate Division for the First Department held that, absent termination or abrogation of legal status and duties to each other, a spouse may not commence a summary proceeding to evict another spouse.  The jurisprudence since the Rosenstiel case had broadened the scope of the Rosenstiel holding, extending the ‘familial exception’ to non-nuclear family members. 

In 2017, the Appellate Division for the Second Department addressed the issue again, and clarified the rule. In the case, Heckman v. Heckman, 2015-2003 S C (N.Y. App. Div. 2017), the court ruled that, provided that there are no issues of support between family members, or other enforceable agreements that alter the rights of family members by and between each other, an eviction proceeding is allowed by one family member against another family member.

What does this mean in real-life? It means that an eviction proceeding can be commenced by one family member against another. The laws that determine how you can proceed in evicting someone come from the Real Property Actions and Proceedings Law, Section 711 (grounds where a landlord-tenant relationship exists) and Section 713 (grounds where no landlord-tenant relationship exists).

If family members entered into a formal written lease, then RPAPL 711 will generally apply. In many cases, however, there will likely be no written lease by and between family members, so RPAPL 713 will generally apply. In the case of a proceeding under RPAPL 713, the most expeditious way of evicting someone is in a licensee proceeding, where a 10 day notice to quit is served prior to filing the petition in court.

If, however, legal duties have not been abrogated (such as in a divorce or by a family court order), then an eviction proceeding won’t be allowed. In that case, the way a family member can evict another family member is by bringing an ejectment action in Supreme Court.

Conclusion

Ultimately, a family member can evict another family member. If duties of support exist between the parties, then more likely than not, you will have to bring an ejectment action in the Supreme Court to evict the family member. If, however, there are no duties of support between the parties, then more likely than not you may evict a family member by bringing a licensee proceeding in the housing court.

If you would like to discuss evicting someone, contact the Law Office of Richard Kistnen by calling or texting (718) 738-2324 or emailing info@LORK.nyc.

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