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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Landlord-Tenant
Satisfied Customers: 114741
Experience:  Attorney with over 24 years experience.
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NY "familial defense" in L/T resulting in an ejection

Customer Question

NY "familial defense" in L/T resulting in an ejection proceeding; and which one is best to chose under the circumstances from the start.
If grown daughter has been living with aging parents for 15 years and marries and new husband moves in with his son into the home. Is an eviction possible? The elderly parents have been spending the winter with another sibling in California and wanting to return to the home but were blocked and stalled with various excuses including a nervous breakdown and hospitalization of the daughter.
The mother is becoming upset to not be able to return to her home. So her Calif daughter escorts the elderly mom to NY to calm her down.Which process is best to evict them all? I was told an eviction requires the owner and daughter to leave so an eviction can be done on the sibling, her husband and his daughter. This is posing a problem as she is able to keep the father in Calif but the mother has her autonomy and insisted upon returning to her house and sell her valuables and be with her friends but is waiting for her husband to soon return follow.
Tension builds when spouse of the hospitalized daughter says the eldery parents have dementia and need to be in a home but he and the adult daughter moved out. But their son remains as a studen.
There is contention as the mother does not like all the invasion and wants to remain at her own home. The new spouse insists the elderly parents need to be moved into a nursing home for dementia but the parents protest this. What court would hear and process this and what is neeeded? The daughter and spouse moved out but their teen daughter remain in a room and anther bedroom has been locked with the daughter and spouses belongings. They say they will be returning because they pay the utilities and expenses at the property and have rights.The daughter has since relapsed and experiencing anxiety soon to have another breakdown.
Submitted: 8 months ago.
Category: Landlord-Tenant
Expert:  Richard - Bizlaw replied 8 months ago.

Hello, my name is Richard and I will try to help you. Please remember I just report or interpret the law, so the outcome may not be what you hoped for.

I am sorry to hear of your difficulties. Your daughter and her husband are tenants under the law. You can evict them by issuing them a 30 day notice to terminate the rental. If they do not vacate in 30 days, you can start a legal proceeding to have them evicted. If the order to vacate is not followed, the sheriff will evict them. You can do it yourself but to avoid the inherent stress of the situation that you are already dealing with, I suggest you retain a landlord tenant attorney to handle the process for you.

If I have answered all your questions, please positively rate my answer as that is how I receive credit. If you have more questions, please let me know. If the answer was especially helpful you can provide a bonus.

Customer: replied 8 months ago.
That is not what i am asking. I am specifically asking about how to determine which proceeding to open. An eviction in L/T or go directly to an ejection proceeding and how to make the determination if it will be succesful or not according to the circumstances i presented. Are you familiar with L/T and elder law in NY?
Expert:  Richard - Bizlaw replied 8 months ago.

After you give the notice to vacate if they do not vacate you go to landlord tenant court to get the eviction. I am familiar with the relevant law, that is why I said your daughter and her family will be considered tenants and not just guests who you could get evicted as tresspassers if they did not leave immediately. Since they are tenants you have to go through the tenant eviction process.

If I have answered all your questions, please positively rate my answer as that is how I receive credit. If you have more questions, please let me know. If the answer was especially helpful you can provide a bonus.

Customer: replied 8 months ago.
That is incorrect. Are you a NY attorney and familiar with the "familial defence" or an ejection proceeding?
Expert:  Richard - Bizlaw replied 8 months ago.

Yes I am a NY lawyer and I do not know what you think a familial defence is. You own the property and you want your family members who you previously allowed to live with you to leave. As the owner, you have the right to termiante their occupancy. What is the defense you think they have?

Customer: replied 8 months ago.
I spoke to two attornies that said there is a familial defense that is bought up on L/T court which throws the case to the supreme court for an ejection proceeding. You don't know about this?
Customer: replied 8 months ago.
I would like to determine what criteria would result in this happening?
Customer: replied 8 months ago.
Perhaps an elder law attorney would be familiar with the ejection proceeding or ejection order?
Expert:  Richard - Bizlaw replied 8 months ago.

I will opt out because when I have had occassion to evict family members no such defense was raised since being a relative does not give you the right to live with a relative be it parent or child.

Customer: replied 8 months ago.
Even if the adult child invested 20 years into the home and was caregiver for the parents? I was told by a L/T attorney that if the kitchen and living room is shared, that it's one space, and if the owner is living on the premises, the only way to evict the daughter and her spouse in regular L/T court is if the parent leaves the premises. Otherwise it will be thrown out and an ejection proceeding needs to be opened. That will allow the elder parent to remain on the premises and still get the adult daughter and her spouse out., Do you have samples of cases such as these? Where the defendent made a plea for familial defense sending the case to Supreme Court? Perhaps if there is a question of competence of the elderly parent?
Expert:  Law Educator, Esq. replied 8 months ago.

Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.


If the child is not a tenant but has lived in the premises and the parent or legal occupant who is on the lease tells the adult child to get out, they have the legal right to tell them to leave. If the adult child refuses to leave, then the parent has to file a suit for eviction against the person. The person who is staying with the relative, regardless of their claims, has no legal right to remain there if they are not on the lease and as such the court will order them out.

Even if you claim mental competence of the parent seeking the eviction, you have to actually prove it and if a medical report does not prove they are incompetent you will be evicted.

The reason there is no case law on this is these cases are very fact specific and case law is written by the appeals and supreme court and these cases do not get that far and also because a relative has no legal right to simply force themselves to live with a parent or relative when that person does not want them there regardless of the reasons.

Customer: replied 8 months ago.
If the owner is elderly and CLEARLY feels safer and secure in their OWN home, and feels INTIMIDATED by their adult child's new spouse , whether they are competent or not, (but the owners other adult children knows their elderly parents wish to remain in their own home in familiar surroundings with supportive caregivers)
would a attorney psychologist, letter supporting this suffice in L/T court or will the occupants have a "right" to "familial defese so a Supreme Court can make the decision?
Customer: replied 8 months ago.
Do you know about an "ejection proceeding?"
Expert:  Law Educator, Esq. replied 8 months ago.
Thank you for your reply.

Whether or not this is the truth, I am afraid the adult child cannot force themselves to stay in the parent's residence against the parent's wishes.

The ejectment process requires you to be given a 3 day notice to leave for non-payment of rent or if no rent is paid, a 30 day notice to leave. If you refuse to leave, they have to sue you to evict you from the premises and you have to appear in court and present evidence to them as to why the eviction is not proper and why you have a right to stay there legally.
Customer: replied 8 months ago.
Back to my details. If such an occupant was a daughter who shared the home w the parents all along and helped pay some bills for 15+ years, would case taken to L/T court get thrown out and require the case be sent to Supreme Court as some L/T attorneys have suggested on the ground that there is a family member getting evicted and that the elders competence is questionable? If the new POA determines that the health of the elderly is better maintained if they gradually get to age in their own home rather than be forced into nursing homes, would this require going to the Supreme Court? The elder parents have another sibling as new POA.
Expert:  Law Educator, Esq. replied 8 months ago.
Thank you for your reply.

No, if the daughter was not on the lease, the L/T court has no choice but to evict the daughter if the person on the lease wants them to leave. If you can prove the person is mentally incompetent through medical testimony, then the court could order that they need care and are not mentally competent to make the decision to evict. If the new PoA proves they are acting in the best interest of the parent, then the court can still allow them to make the decision to evict though. While I know you believe the daughter is best to care for the parent, the court will have to evaluate the evidence you prove in court of that to make a determination.

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