Opinion
318-09.
Decided July 2, 2009.
Gary N. Weintraub, Esq., Attorney for Petitioner, Huntington, New York.
Nassau Suffolk Law Services Committee, Inc., Victoria L. Davies, of Counsel, Jeffrey Seigel, Esq., Attorney for Respondent, Riverhead, New York.
The petitioner, Andrew Rich, the Trustee of the Testamentary Trust of Anne M. Whipple, has commenced this dispossession proceeding pursuant to NY R.P.A.P.L. § 713 seeking to evict the respondent, Jennifer Poole, alleging that she is an "intruder/squatter". The respondent's defense is the assertion that she is not a squatter and that she enjoys the status of a licensee by virtue of the permission to occupy the premises granted by her boyfriend, the Trust beneficiary, Bruce R. Eustis. Alternatively, it is asserted that she is protected from eviction as a licensee by virtue of the provisions of New York's "Roommate Law" New York R.P.L. § 235(F).
The Undisputed Facts
Sometime prior to 1998, Anne M. Whipple took title to the real property premises located at 5 Meadow Farm Lane, Cold Spring Harbor, New York (hereafter "the premises") with her then minor son, Bruce Eustis. After Mrs. Whipple's death, her estate conveyed title of the subject premises to Andrew Rich, as Trustee of the Anne M. Whipple Testamentary Trust, pursuant to deed dated May 3, 2004. Mrs. Whipple's Testamentary Trust vests all her real and personal property in the Trust and grants the Trustee unfettered discretion to liquidate or maintain same subject to the fiduciary responsibility of providing for the maintenance and support of her son, Bruce. The Trustee has continued Mr. Eustis in exclusive possession of the premises without demand for rent or other compensation. Mr. Eustis invited Jennifer Poole to reside with him in 2008, without obtaining the Trustee's permission. The Trustee seeks to remove only Ms. Poole and served her a ten(10) day Notice to Quit on May 1, 2009.
Disputed Issues of Fact
The only relevant disputed factual issue is the respondent's contention that she is a rent paying tenant of Mr. Eustis. The record belies this contention. For the purpose of this decision, the Court finds her to be a "girlfriend/paramour", who does not maintain a landlord/tenant relationship with Mr. Eustis or the Trustee The Court need not address the other collateral factual issues surrounding the Trustee's decision to dispossess Ms. Poole.
Issue Presented
Is the girlfriend of a Trust beneficiary, who occupies a house without the trustee's permission, subject to dispossession via a NY R.P.A.P.L. § 713 summary proceeding?
Discussion
The threshold dispositive issue requires the Court to address the girlfriend's argument that her legal status is not that of a "squatter" but is that of a "licensee" of Mr. Eustis. A license is not an interest or estate in land. Senrow Concessions, Inc. v. Shelton Properties, Inc., 10 NY2d 320 (NY 1961). It is a personal, revocable and non-assignable privilege . Greenwood Lake PJR Co. v. GLR Co., 134 NY 435 (NY 1892). In this proceeding, it is undisputed that the petitioner Trustee gave no permission for the respondent's occupancy. Premised thereon, the respondent's defense rises and falls upon the status of her boyfriend, Mr. Eustis. If he is a licensee of the Trustee, he is legally unable to grant her an occupancy licensee. However, if he maintains the status of a "tenant at will" he would have the authority to grant a co-occupancy license to the respondent. In such an instance, the petitioner's remedy would be limited to commencing an eviction action pursuant to the provisions of NY R.P.A.P.L. § 711 against his ward should Mr. Eustis decline his directive to remove Ms. Poole. Sec. 711 proceedings involve the existence of a landlord/tenant relationship which entitles the tenant to the enhanced 30 day notice provisions provided under NY R.P.L. § 228.
Interestingly, the terms "tenant at will" and "licensee" are not defined by statute in New York, and as such, the distinction between them is left to the common law. See, Larned v. Hudson, 60 NY 102 (NY 1875). The generic common law definitions of these two concepts do tend to blur and involve shared concepts of temporary permission to occupy premises for an undetermined time period. See generally, Fisher v. Queens Park Realty Co., 41 AD2d 547 (NYAD 2d Dep't. 1973). However, synthesized down to its most basic common denominator, a "tenant at will" recognizes a landlord tenant relationship and is granted exclusive possession of a designated space while a "licensee" acknowledges an absence of a landlord/tenant relationship and receives only unexclusive "use and occupancy" of a premises. See, American Jewish Theatre, Inc. v. Roundabout Theatre Co., Inc. 205 AD2d 155 (NYAD 1st Dep't. 1994) citing to Feder v. Caliquira, 8 NY2d 400 (NY 1960). See also dicta, Reynolds v. Van Buren, 155 NY 120 (NY 1898).
In the subject case, Mr. Eustis' occupancy is exclusive. Said occupancy lawfully originated via his status as the minor child of his mother. He continues to occupy the premises located at 5 Meadow Farm Lane, Cold Spring Harbor, New York 11724, pursuant to the Trustee's oral permission and "good graces" fiduciary discretion. The petitioner's able counsel advances the argument that no landlord/tenant relationship has been established as no rent was ever asked for or paid. However, the obligation to pay rent is not an absolute element of "tenancy at will". Larned v. Hudson, 60 NY 102 (NY1875); Fisher v. Queens Park Realty Co., 41 AD2d 547 (NYAD 2d Dep't. 1973). Exclusive use and possession subject to an agreement to surrender the premises to "the landlord", upon request, is sufficient to create a "tenant at will". See Burns v, Bryant, 31 NY 453 (NY 1865); Williams v. Saratoga Co.Agr.Soc., 277 AD 642 (NYAD 3rd Dep't 1951). The dispositive test is whether "he who is in possession has, by some act or agreement, recognized the other as his lessor or landlord and taken upon himself the character of a tenant under him, so that he is not at liberty afterwards to dispute his title". Benjamin v. Benjamin, 5 NY 383 (NY 1851).
The parties correspondence (Exhibits 4-6) and testimony clearly establish that Mr. Eustis understood that the Trustee was the undisputed owner of the property and that his occupancy arose via the acceptance of the status and character of a tenant. Premised thereon, the Court finds that Mr. Eustis is a "tenant at will" and that he lawfully granted the respondent a licensee to share the house with him. The respondent is not a squatter/intruder and therefore can not be removed via a § 713(3) proceeding. Accordingly, the petition is dismissed.
The Court commends the petitioner Trustee for his exemplary dedication in furtherance of his fiduciary duties. The law's frustration of his effort to protect his ward does not diminish the wisdom of his counsel in this instance.
The "roommate law" issue will not be addressed as it is moot.