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

Rule:

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 an occupancy" of a premises. 

Facts:

Robert Drost, the petitioner, is the sole deeded title holder of the real property located at 43 Louisa Court, Northport, New York. Until recently, the petitioner resided there with his ex-girlfriend, the respondent, Kim Hookey, for in excess of three years. 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. The former boyfriend filed a summary proceeding pursuant to RPAPL § 713(7) to dispossess respondent former girlfriend from real property. The girlfriend 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:

Is the girlfriend a "tenant at will" and therefore entitled to a thirty-day notice to quit?

Answer:

No

Conclusion:

The supreme court held that the girlfriend was not a "tenant at will" and was not entitled to a thirty-day notice to quit. The factual situation evidenced no indication of a landlord tenant relationship. The girlfriend 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 girlfriend's burden to identify her statutory entitlement to opt-out of the common law licensee definition. The girlfriend advanced no argument citing to alternative statutory entitlement to greater dispossession protections other than those provided by § 713(7). Therefore, she met the common law definition of a licensee and was subject to a § 713(7) summary eviction.