So you have a situation when your brother is living in estate’s house and refusing to move out or pay rent. He could even be the executor or trustee. There are steps you and your lawyer can take to resolve the situation.
Writing a wrongful ouster letter
The first thing your attorney would do is probably send your brother an ouster letter. The letter clarifies that you object to his living in the property and would like his to start paying rent. This letter can trigger your right to get reimbursed for back rent when the house is eventually sold. Without an ouster letter, you will not have the right to back rent. It’s a good idea to retain an attorney to write this letter for you and send to your brother.
If your brother is also collecting rent from tenants on the property
If your brother is also collecting rent, you are entitled to be reimbursed for your share of that rent as soon as your brother receives it. You are also entitled to be reimbursed for your share of the collected rent once the house is sold and the proceeds are apportioned. If your brother is the executor or trustee, you have the right to demand an accounting where he should show that the rent collected on the property is going to the estate.
If you are the executor, administrator or trustee evicting your brother
If you are the executor or administrator (which means you have been issued letters testamentary, letters of administration or its equivalent by the court), you can file a summary eviction proceeding against your brother.
As a general rule, New York courts do not allow summary eviction proceedings instituted against family members. Many lawsuits have been filed, attempting to evict family members under the licensee holdover provision in RPAPL § 713(7). These property owners claim that their family members are licensees who had been given permission to stay in the property, but whose permission had now been revoked. New York courts have refused to classify family members as licensees that can be evicted in a summary proceeding. Eviction of family members have to be filed as a lawsuit in the Supreme Court, a longer process which includes discovery and trial.
This family member exception does not apply to evictions of an executor or administrator or trustee against beneficiaries. Even if the executor or administrator and beneficiary are related as family members, the family member exception in the licensee holdover proceeding does not apply to that situation because the family member is instituting the proceeding against the other family member, not as a property owner but as an executor or administrator of an estate. In this case, the executor or administrator can file a summary proceeding against a beneficiary for eviction, even if the executor or administrator and the beneficiary are related as family members. A 10-day notice to quit is required for eviction proceedings where no landlord-tenant relationship existed. Your lawyer will be able to assist you in filing this proceeding.
If your brother is the executor, administrator or trustee
The situation becomes more complicated when it is your brother who is the executor, administrator or trustee who occupies estate property rent-free. In this case, you can file a petition to remove his as the person acting for the estate or trust and for the appointment of a successor executor or administrator.
As the fiduciary, your brother has the duty to act free of conflict of interest and not pursuant to his own self-interest. his living in the estate’s home without paying any rent has clearly no benefit to the estate. Not only will the family home experience more wear and tear, the estate derives no financial benefit from the executor or administrator staying in the property. Using estate property, rent-free, is a ground for removing the executor or administrator.
You can also request your brother submit and accounting before he can be discharged. You can object to the accounting and ask that your brother be surcharged for rent for the entire period he was living in the property rent-free, and for any rent he collected from tenants on the property.
If your brother still refuses to vacate the property, the successor executor or administrator, once appointed by the court, can file an eviction proceeding against her.
If you need to evict your brother from estate property and force his to pay back rent, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can send us an email at firstname.lastname@example.org or call us at 718-509-9774.