Landlord-Tenant

Ask a landlord-tenant lawyer and get answers ASAP

Ask a Lawyer,
Get an Answer ASAP!

Landlord-Tenant

NY "familial defense" in L/T resulting in an ejection

Customer Question
NY "familial defense" in L/T...
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: 1 year ago.Category: Landlord-Tenant
Show More
Show Less
Ask Your Own Landlord-Tenant Question
Answered in 1 day by:
8/20/2016
Lawyer: Richard - Bizlaw, Attorney replied 1 year ago
Richard - Bizlaw
Category: Landlord-Tenant
Satisfied Customers: 10,684
Experience: Commercial and residential leases in NY & NJ & US
Verified

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.

Ask Your Own Landlord-Tenant Question
Customer reply replied 1 year 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?
Lawyer: Richard - Bizlaw, Attorney replied 1 year 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.

Ask Your Own Landlord-Tenant Question
Customer reply replied 1 year ago
That is incorrect. Are you a NY attorney and familiar with the "familial defence" or an ejection proceeding?
Lawyer: Richard - Bizlaw, Attorney replied 1 year 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?

Ask Your Own Landlord-Tenant Question
Customer reply replied 1 year 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 reply replied 1 year ago
I would like to determine what criteria would result in this happening?
Customer reply replied 1 year ago
Perhaps an elder law attorney would be familiar with the ejection proceeding or ejection order?
Lawyer: Richard - Bizlaw, Attorney replied 1 year 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.

Ask Your Own Landlord-Tenant Question
Customer reply replied 1 year 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?
Lawyer: Law Educator, Esq., Attorney replied 1 year ago
Law Educator, Esq.
Category: Landlord-Tenant
Satisfied Customers: 119,495
Experience: Attorney with over 24 years experience.
Verified

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

I am a DIFFERENT CONTRIBUTOR.

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.

Ask Your Own Landlord-Tenant Question
Customer reply replied 1 year 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 reply replied 1 year ago
Do you know about an "ejection proceeding?"
Lawyer: Law Educator, Esq., Attorney replied 1 year 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.
Ask Your Own Landlord-Tenant Question
Customer reply replied 1 year 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.
Lawyer: Law Educator, Esq., Attorney replied 1 year 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.
Ask Your Own Landlord-Tenant Question
Ask Law Educator, Esq. Your Own Question
Law Educator, Esq.
Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Landlord-Tenant
Satisfied Customers: 119,495
119,495 Satisfied Customers
Experience: Attorney with over 24 years experience.

Law Educator, Esq. is online now

A new question is answered every 9 seconds

How JustAnswer works:

  • Ask an ExpertExperts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional AnswerVia email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction GuaranteeRate the answer you receive.

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises!

Gary B.Edmond, OK

My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, KS

PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent.

Three H.Houston, TX

Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!!

ElaineAtlanta, GA

It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem.

TonyApopka, FL

Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help.

Mary C.Freshfield, Liverpool, UK

< Previous | Next >

Meet the Experts:

Thomas McJD

Thomas McJD

Lawyer

46 satisfied customers

Landlord-Tenant Law Expert

LegalWiseNC

LegalWiseNC

Attorney

0 satisfied customers

Licensed Attorney in North Carolina.

barristerinky

barristerinky

Attorney

3,830 satisfied customers

Attorney over 17 years, landlord 26 years

Infolawyer

Infolawyer

Attorney

2,075 satisfied customers

Experience representing landlords and tenants.

Dimitry K., Esq.

Dimitry K., Esq.

Attorney

1,379 satisfied customers

Licensed in multiple jurisdictions. Experienced Landlord-Tenant attorney.

Ely

Ely

Counselor at Law

1,272 satisfied customers

Attorney

LawTalk

LawTalk

Attorney

1,055 satisfied customers

I have handled Real Estate and Landlord Tenant matters for more than two decades.

< Previous | Next >

Related Landlord-Tenant Questions
I need to evict a resident the homeowner [landlord] wants
I need to evict a resident the homeowner [landlord] wants him out in 10 days. I'm as bright as a box of rocks and ***** ***** Landlord thinks I,m dragging my feet... hes incapable. 69 yrs old how do I… read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
5,921 satisfied customers
My question is the following... The 31 of october perform a
Greetings. My question is the following... The 31 of october perform a lease in apartment for 12 months in Las Colinas Irving Texas.I need to cancel it because i got divorced and I go to Italy in Janu… read more
Phillips Esq.
Phillips Esq.
Attorney
Juris Doctor
17,979 satisfied customers
This question concerns CA Tenant Law. Am I speaking to an
I have received a "LEASE VIOLATION" notice for garage storage and I would like to know what options if any, I may have if any. … read more
Roy Hadavi
Roy Hadavi
Attorney
Juris Doctorate
886 satisfied customers
Man complained continuously about cockroach infestation at
Man complained continuously about cockroach infestation at apartment complex. Management had his apt sprayed but did not seem to help. Management blamed problem on former neighbor (moved away). Now ma… read more
barristerinky
barristerinky
Attorney
Doctoral Degree
3,830 satisfied customers
Upon signing the lease agreement, tenant and landlord are
Second opinion] Upon signing the lease agreement, tenant and landlord are suppose to have copies of every paperwork, correct? What if there was some paperwork I don't ever remember signing and I know … read more
Phillips Esq.
Phillips Esq.
Attorney
Juris Doctor
17,979 satisfied customers
Upon signing the lease agreement, tenant and landlord are
Upon signing the lease agreement, tenant and landlord are suppose to have copies of every paperwork, correct? What if there was some paperwork I don't ever remember signing and I know I never received… read more
LegalKnowledge
LegalKnowledge
Juris Doctor
27,451 satisfied customers
A property is let by a landlord to a lessee in terms of an
A property is let by a landlord to a lessee in terms of an agreement of lease. The property has a cellar. The lease agreement specifically excludes the cellar. However the lessee openly occupies the c… read more
Irwin Law
Irwin Law
Juris Doctor JD
7,051 satisfied customers
I have a rental property that my tenants have just moved out
I have a rental property that my tenants have just moved out without notice. They have not paid last months rent. I need to know when can I gain access to the property. … read more
barristerinky
barristerinky
Attorney
Doctoral Degree
3,830 satisfied customers
I am a landlord of a house in Lacey, WA. My tenant signed a
I am a landlord of a house in Lacey, WA. My tenant signed a contract 11/10/2017. She has just started to move in and refuses to pay the pro rated amount of $700 because she chose to move in later that… read more
LegalGems
LegalGems
Juris Doctorate
10,163 satisfied customers
My landlord evicted me unfairly by pocketing my partial
My landlord evicted me unfairly by pocketing my partial payment. I didnt go to court so the eviction went through. The landlord then afterwards allowed me to move in to another apartment in the buildi… read more
LegalKnowledge
LegalKnowledge
Juris Doctor
27,451 satisfied customers
I need your help to figure out how to deal with a dispute
Dear Pearl, I need your help to figure out how to deal with a dispute with my tenant regarding rodent infestation issue in my rental house … read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
5,921 satisfied customers
My landlord has not repaired the refrigerator after 90 days.
My landlord has not repaired the refrigerator after 90 days. I have called multiple times and finally made a request in writing. The superintendent says the landlord can't due to family issues and his… read more
Law Educator, Esq.
Law Educator, Esq.
Attorney
119,495 satisfied customers
I am a tenant and was charged for the elevator in my
Hi I am a tenant and was charged for the elevator in my building breaking down. is that something a tenant can be charged for? I assume the elevator should have a warranty or some type of service cont… read more
LegalKnowledge
LegalKnowledge
Juris Doctor
27,451 satisfied customers
I am renting a cinco and the owners hqve installed inside
I am renting a cinco and the owners hqve installed inside cameras without my knowledge i wan them removed what recourse do i have… read more
LegalKnowledge
LegalKnowledge
Juris Doctor
27,451 satisfied customers
I am a landlord in the state of Illinois with a twelve month
I am a landlord in the state of Illinois with a twelve month tennant lease. The lease runs from JULY 30, 2017 to July 31, 2018. There is no listing of when the rent is due. My question is when would t… read more
LegalKnowledge
LegalKnowledge
Juris Doctor
27,451 satisfied customers
I broke off an engagement, and moved out. I let my landlord
so i broke off an engagement, and moved out. I let my landlord know and my fiance is still residing there. I offered my landlord to pay out the entire rent, not just my half to be put off the lease and they said no. can i do anything? … read more
LegalKnowledge
LegalKnowledge
Juris Doctor
27,451 satisfied customers
Landlord dies 3days ago have received no notice to vacate
Landlord dies 3days ago have received no notice to vacate received text telling me to be out asap by daughter inlaw … read more
LawGuy
LawGuy
Juris Doctor
123 satisfied customers
We just went through an eviction of tenant. tenant moved out
we just went through an eviction of tenant. tenant moved out without leaving forwarding address. Aside from the damage beyond normal wear and tear they painted graffiti on walls of three rooms and glu… read more
Infolawyer
Infolawyer
Attorney
Doctoral Degree
2,075 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x