Tenants-In-Common Did Not Owe Each Other Fiduciary Duty Absent a Partnership or Joint Venture Agreement—A Tenant-In-Common in Possession of Property Has a Duty to Maintain and Preserve the Property for the Benefit of All Co-Tenants and to Pay Real Estate Taxes—Plaintiff Was Not Entitled to an Accounting With Respect to Property in Which Her Brother Was Permitted to Live Rent Free and Is Not Entitled to Recover a One-Half Share of the Fair Rental Value of That Unit—However, There Were Issues of Fact as to Whether the Defendant “Improperly Apportioned or Disposed of Income Actually Realized From Arms’ Length Rentals, to Third Parties of Several Other Units”
A brother and sister each owned an undivided 50 percent interest in an apartment as tenants-in-common (TIC), with no right of survivorship. Their heirs currently own the apartment as TIC. The brother’s heir (defendant) currently lives in the apartment rent free. The sister’s heir (plaintiff) commenced the subject action seeking a declaration declaring that “she possesses an undivided 50 percent interest in the [apartment] as [TIC] with the defendant, and is entitled to all of the benefits of ownership of that interest, including the right to a proportionate share of rental income.” The plaintiff further sought, inter alia, an accounting and “a judgment pursuant to RPAPL 1201 awarding her an appropriate share of the rental income from the property” and “a permanent injunction prohibiting the defendant from managing the property.” The plaintiff moved for summary judgment on a claim for conversion and for leave to amend her complaint to add a cause of action for damages based on a breach of fiduciary duty.
