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Seattle Scott
Seattle Scott, Lawyer
Category: Real Estate Law
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Experience:  I have 25 years experience as a Washington State Real Estate Attorney
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I live wirh my mom who has the the beginning stages of altzheimers

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I live wirh my mom who has the the beginning stages of altzheimers disease since 2008, The house is in my mom and my sisters name. I live in Brooklyn, NY. I was served a Notice of Termination of Licensee by my sister. My mom says she knows nothing about it. Whar are my legal options? This is the result of a family feud.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  lwpat replied 1 year ago.
Thanks for using JA. I will do my best to answer your questions. DON’T FORGET the your deposit is not used to compensate me until you rate my service.

I am sorry to hear of your situation. Is your mother competent and if so do you have her power of attorney or does your sister have the power of attorney?
Customer: replied 1 year ago.

Mother has not been declared incompetent. Sister has power of attorney

Customer: replied 1 year ago.
Relist: Answer came too late.
Expert:  Seattle Scott replied 1 year ago.
Is sister trying to kick you out of your mother's house or what is the intent of the Notice of Termination of Licensee?

Is the power of attorney a durable power, meaning it says on its face that it takes affect upon the incompetency of your mother or does it take affect on day one after it is signed?
Customer: replied 1 year ago.

Yes, my sister is trying to kick me out og my mother's house. Don't know details of POA.

Expert:  Seattle Scott replied 1 year ago.
Do you pay rent or pay anything toward the cost of the house and are you living there with an agreement from your mother? Finally, where do your sister and mother live?
Customer: replied 1 year ago.

I buy all household necessities including food, I cook, clean and maintain the house. I stay with her because he is forgetful, and may go for walks and not remember how to get home. My mother lives with me in the house. my mother and sister are on the deed. My sister lives in her own house.

Expert:  Seattle Scott replied 1 year ago.
She will need to proceed with an eviction - court case where she will be required to prove that either she has your mother's consent to evict you or that it is in your mother's best interests that you be kicked out using her power of attorney. Your sister has a fiduciary duty under the power of attorney to make decisions for your mother that are good for your mother - not just what your sister wants.

I am going to check on NY law regarding the type of notice details that you need to receive to start the termination of tenancy process and get back to you tomorrow. There is going to be a minimum of 20 days advance notice and as long as 60 days - it is state specific and I just can't remember NY law on this.

In the meantime, tell me when you received the "termination" notice and what does it say regarding when she is demanding you leave
Customer: replied 1 year ago.

I received the termination notice today 6/17/2013 and I have until 6/28/2013 to vacate or "summary proceedings against me under statute , section 713 subd 7 of the Real Property Actions and Proceedings Law will commence to remove me as such licensee." I live in Kings county, Brooklyn NY.

Expert:  Seattle Scott replied 1 year ago.

I am working on an answer. As a preliminary response I would say that the notice you received is defective. Here is the statute your sister is proceeding under: § 713. Grounds where no landlord-tenant relationship exists A special proceeding may be maintained under this article after a ten-day notice to quit has been served upon the respondent in the manner prescribed in section 735, upon the following grounds: 1. The property has been sold by virtue of an execution against him or a person under whom he claims and a title under the sale has been perfected. 2. He occupies or holds the property under an agreement with the owner to occupy and cultivate it upon shares or for a share of the crops and the time fixed in the agreement for his occupancy has expired. 3. He or the person to whom he has succeeded has intruded into or squatted upon the property without the permission of the person entitled to possession and the occupancy has continued without permission or permission has been revoked and notice of the revocation given to the person to be removed. 4. The property has been sold for unpaid taxes and a tax deed has been executed and delivered to the purchaser and he or any subsequent grantee, distributee or devisee claiming title through such purchaser has complied with all provisions of law precedent to the right to possession and the time of redemption by the former owner or occupant has expired. 5. Subject to the rights and obligations set forth in section thirteen hundred five of this chapter, the property has been sold in foreclosure and either the deed delivered pursuant to such sale, or a copy of such deed, certified as provided in the civil practice law and rules, has been exhibited to him. 6. He is the tenant of a life tenant of the property, holding over and continuing in possession of the property after the termination of the estate of such life tenant without the permission of the person entitled to possession of the property upon termination of the life estate. 7. He is a licensee of the person entitled to possession of the property at the time of the license, and (a) his license has expired, or (b) his license has been revoked by the licensor, or (c) the licensor is no longer entitled to possession of the property; provided, however, that a mortgagee or vendee in possession shall not be deemed to be a licensee within the meaning of this subdivision.

 

I don't think you are a licensee. I think you are a tenant. A licensee is someone who has been granted occupancy from some one other than an owner.

 

You are a tenant at will, meaning you have an agreement with your mother and sister to live there for an unspecified period, not month to month, just indefinite as to duration. To terminate such a tenant required 30 days notice.

 

.

New York Statutes

Real Property

Article 7. Landlord and Tenant

 

Current through 2013 New York Laws, Chapters 1 to 47 and 50 to 59

 

§ 228. Termination of tenancies at will or by sufferance, by notice

 

A tenancy at will or by sufferance, however created, may be terminated by a written notice of not less than thirty days given in behalf of the landlord, to the tenant, requiring him to remove from the premises; which notice must be served, either by delivering to the tenant or to a person of suitable age and discretion, residing upon the premises, or if neither the tenant nor such a person can be found, by affixing it upon a conspicuous part of the premises, where it may be conveniently read. At the expiration of thirty days after the service of such notice, the landlord may re-enter, maintain an action to recover possession, or proceed, in the manner prescribed by law, to remove the tenant, without further or other notice to quit.

Cite as Real Property Law § 228

 


So if your sister proceeds with an eviction suit your defense is that you are a tenant that received less than 30 days notice of termination. Your other defense is that your mother did not join in the suit which is required since she is an owner and your third defense is that if your sister is proceeding with a power of attorney from your mother and therefore your mother does not need to join in the eviction suit, that sister's use of the power of attorney is invalid since evicting you does not benefit your mother.

 

Seattle Scott, Lawyer
Category: Real Estate Law
Satisfied Customers: 744
Experience: I have 25 years experience as a Washington State Real Estate Attorney
Seattle Scott and 3 other Real Estate Law Specialists are ready to help you
Expert:  Seattle Scott replied 1 year ago.
Just checking to see if I answered your question?

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