Drost v. Hookey - 2009 NY Slip Op 29257, 25 Misc. 3d 210, 881 N.Y.S.2d 839 (Dist. Ct.)

Rule:

RPAPL § 713(7) includes all common law licensees except those who can claim an "opt-out" status by virtue of inclusion in a legislative vehicle which grants them greater rights than those of a licensee. Mere co-habitation without marriage does not give rise to property or financial rights which attend the marriage relationship. It is therefore the burden of the respondent paramour to identify her statutory entitlement to opt-out of the common law licensee definition.

Facts:

Petitioner Robert Drost was the sole deeded title holder of the subject property and had resided there with his ex-girlfriend, the respondent, Kim Hookey. Prior to moving in together the respondent individually owned and resided in her own separate house. Contemporaneously with the petitioner's move-in invitation, the respondent transferred a one-half interest in her house to him in consideration of $25,000 which was utilized to cure her mortgage arrears. After three years, petitioner filed a summary proceeding pursuant to RPAPL § 713(7) to dispossess respondent from the real property. Respondent argued that the ten-day notice to quit under § 713(7) was inapplicable because she was not a licensee but rather a tenant at will, which required a thirty-day notice to quit, Real Property Law § 228.

Issue:

Was the respondent a tenant at will, entitled to a thirty-day notice to quit? 

Answer:

No.

Conclusion:

The supreme court held that the respondent was not a "tenant at will" and was not entitled to a thirty-day notice to quit. According to the court, the factual situation evidenced no indication of a landlord tenant relationship. The respondent was granted permission to utilize the entirety of the residence - that grant did not include exclusive dominion and control over a specifically identified part of the premises and, as such, was recognized to constitute a license pursuant to § 713(7). Section 713(7) included all common law licensees except those who could claim an "opt-out" status by virtue of inclusion in a legislative vehicle that granted them greater rights than those of a licensee. Therefore, it was the respondent's burden to identify her statutory entitlement to opt-out of the common law licensee definition. The respondent advanced no argument citing to alternative statutory entitlement to greater dispossession protections other than those provided by § 713(7). Therefore, the court concluded that the respondent met the common law definition of a licensee and was subject to a § 713(7) summary eviction.