Sunday, June 30, 2013

Family Member Not "Licensee"

            A recent Nassau County District Court decision highlights the definition of a "licensee" with respect to summary eviction proceedings against family members.  In Kakwani v. Kakwani (2013 NY Slip Op 23200), the petitioner (the owner of a premises) brought a summary eviction proceeding against a family member who was a tenant of the premises pursuant to RPAPL Section 713(7).  The petitioner alleged that the tenant was a "licensee" whose license to reside at the premises (which was the respondent's marital residence) has been revoked, thereby allowing service of a 10 day notice to quit before an eviction proceeding was brought (as opposed to a 30 day notice that's required for other types of summary eviction proceedings).  The tenant's defense was that she is a "family member" who cannot be evicted in a summary proceeding.

Although the statutory law does not indicate whether a "licensee" includes family members, the Court noted that case law does.  According to the Court, case law holds that a family member is not a "licensee" for purposes of a RPAPL Section 713(7) action, and that an ejectment action commenced in the Supreme Court (as opposed to a summary eviction proceeding) is the proper avenue in such situations involving family members (it should be noted that an ejectment action is generally more time consuming than a summary eviction proceeding).

The Court stated the following: "These cases seemingly show that occupancy due to familial relationship does not constitute a licensee agreement as intended by RPAPL 713 (7).  There are various forms of family relationships ranging from spousal, parent and child, and even nonmarried couples. They are unique and thus should not be terminated through summary proceedings, which tend to be speedy.  Instead, more appropriate avenues must be taken such as ejectment actions or proceedings in Family Court....All this court holds is that a family member may not be summarily evicted from the family home with a 10-day notice to quit.  A more deliberate process is required and is readily available."

Salvatore R. Marino, Esq.

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