Many New York Estates and New York Guardianships contain assets in the form of real estate such as single or multi-family homes. Other possible assets can also include a condominium or cooperative apartment. These properties are a valuable, and many times the most valuable, asset owned by a decedent or an incapacitated person.
Problems often arise when the estate Executor or Administrator or Article 81 Guardian need to sell these assets to make a monetary distribution to beneficiaries or to pay expenses. Frequently, there are other persons who are living in these properties and remain there after the appointment of the fiduciary and they refuse to vacate the premises to allow the property to be marketed and sold. Persons who may be living in a house or apartment can range from children of the decedent or the incapacitated person to third party friends.
When a situation arises requiring the removal of a person from property as described above, the most common procedure is to file a Summary Eviction proceeding in the County where the property is located. This is the most common and expeditious method especially when dealing with non-relative occupants. For example, if the decedent had a Queens Probate or Brooklyn Probate and left a house in such County, the eviction proceeding would be filed in the Landlord-Tenant Part of the New York City Civil Court in such County.
Landlord-Tenant proceedings can be complicated and it is a good practice to obtain legal guidance from an attorney with experience in these matters. I have represented many individuals in Landlord-Tenant cases throughout New York. In an eviction case, there is usually an initial Notice sent to the occupant advising him or her to vacate by a certain date or Court proceedings will then be commenced. If the person fails to vacate as demanded in the Notice, a proceeding is filed in the Court to have the person evicted.
While eviction proceedings are "Summary" in nature, meaning that the process to have a Judge hear and determine a case is streamlined, the procedural aspects of these cases usually result in many adjournments and extensions. The ultimate consequence is that the Estate Administration or Settlement can be delayed for many months until the eviction process is completed.
In the Guardianship setting, a reverse scenario may occur. When a person becomes incapacitated they may be unable to pay the rent on the apartment where they live. Due to this non-payment of rent, the landlord may start an eviction proceeding against an incapacitated person who may be unable to defend himself or herself until a Guardian is appointed. In such situations, when a petition for Guardianship is initially filed with the Court, the Court may issue an Order Staying or putting on hold the eviction case until a Guardian is appointed who can either pay rent or otherwise defend the incapacitated person's interest. Mental Hygiene Law section 81.23 provides that the Guardianship Court has the power to grant such a provisional remedy. There have been many instances when I have represented persons to be appointed as an Article 81 Guardian when I have obtained this type of relief and prevented the incapacitated person from being evicted from his or her home.
The ownership of real estate and tenancy rights relating to Estate and Guardianship proceedings can be very complicated and involve very valuable interests. As a New York Guardianship and New York Estate and Trust Lawyer, I have helped my clients recognize and deal with these issues.