In New York, parents owe an obligation to pay child support until their child is 21. The child support obligation is usually paid to the other parent. However, for other purposes such as child custody, children become adults at age 18. When a parent-child relationship breaks down, but there is neither abuse nor other facts that would justify an order of protection, a parent can ask the child to leave. If there is domestic violence, a court might have the child leave via a stay away order of protection. If this remedy is not sought or available then he or she may need to bring an ejectment action against an adult child.
However, in Kakwani v. Kakwani, a New York District Court considered an analogous situation in which a woman lived with her brother in a family home. The woman’s mother had conveyed the property to her in 2006. The brother married in 2008. The woman continued to live on the property with her brother and sister-in-law. The woman never sought rent from her brother, and he never paid it.
In 2012, however, the woman served a 10-day notice to quit on her sister-in-law, and a few months later in 2013, she filed a petition seeking to evict the sister-in-law only under RPAPL 713 (7) on the ground that she was a mere licensee whose license to occupy the premises had been revoked.
The sister-in-law responded that she was a family member not subject to eviction in a summary proceeding under RPAPL 713 (7). RPAPL 713 provides various grounds for removing someone from the property through a special summary proceeding when no landlord-tenant relationship exists. One of the grounds to remove someone is that he or she is a licensee of someone entitled to possession of the property at the time of the license, and the license expired or has been revoked. Under that section, a 10-day notice to quit must be served on a respondent.
The Kakwani court concluded that a person whose right to be in a home stems from a true family relationship cannot be summarily evicted as a mere licensee without bringing an ejectment action in supreme court. Accordingly, a parent should be able to bring an ejectment action to have a non-tenant child removed. The court reviewed a line of cases involving the “family exception” to the rule related to licensees, including a case in which a stepfather was not entitled to remove his teenage stepchildren from his home in a summary eviction proceeding.
The Kakwani court explained that a supreme court ejectment action was the appropriate remedy to remove a family member who did not have a tenancy but was occupying the property due to a familial relationship. The court in Kosa v. Legg found that the case law regarding whether a notice to quit is required in an ejectment action and which kind of notice is required is inconsistent. In that case, the court held that the common law requirement of a six-month notice to quit needed to be fulfilled before a tenant with an indefinite term could be removed through an ejectment action.
However, if a child is over 21 years old and pays rent or has an obligation to pay utility or other household bills under an enforceable lease, he or she could be treated like any other tenant. The obligation to pay for housing, even if the child didn’t actually pay it, creates a tenancy. The child can then be evicted for nonpayment of rent if he or she hasn’t paid. If he or she is not considered a tenant without a written lease but instead is a month-to-month tenant, he or she must be given 30 days’ notice of the termination of tenancy before eviction proceedings may be started.
If you are trying to modify child custody or child support in New York, contact the Law and Mediation Office of Darren M. Shapiro at 516-333-6555 or via our online form. Our principal Darren Shapiro is an experienced, compassionate family law attorney and mediator.
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