Over 50 years ago, the Appellate Division, First Department in Rosenstiel v. Rosenstiel1 held that a husband, who owned what had been the marital home in his name only, could not evict his wife from the home by way of a licensee holdover proceeding under Real Property Actions and Proceedings Law (RPAPL) §713(7).2 The court reasoned that a spouse’s right to occupy the family residence did not stem from her husband’s permission, but from the very family relationship itself, and therefore a spouse could not be summarily evicted as a mere licensee.
Since Rosenstiel was decided, the courts have developed a “family exception” to RPAPL 713(7). In these cases, where a court finds that a true “family relationship” exists, the courts will not permit one family member to evict another in a summary licensee holdover proceeding with a 10-day notice to quit. Rather, in such cases, an action in Supreme Court for ejectment would have to be commenced. Based on the various decisions that have dealt with these issues over the years, the term “family member” has been defined broadly and is not limited to “legally defined” members of a family. This article will discuss some of those decisions.
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