Co-Tenant or Heir Living Rent-Free in an Inherited New York Home: Recovering Rent and Forcing a Sale

By Albert Goodwin, Esq., New York estate litigation attorney. Last updated January 2025.

One of the most common conflicts in New York estate matters arises when one heir or co-owner continues to live in an inherited home and refuses to pay rent or move out. This page focuses squarely on that fact pattern under New York law: when you can recover the fair rental value of the property, what "ouster" means, how carrying costs are allocated, and how a partition action under RPAPL Article 9 forces a resolution. For two closely related situations we maintain separate, dedicated pages: when the person occupying is an heir who refuses to leave the deceased parent's house, and when you want to pursue a buyout of an inherited residence.

First, Identify How the Property Is Owned

Your rights depend entirely on the form of title, which changes when someone dies. There are three common configurations in New York:

• You and the occupant are already co-owners by deed (tenants in common). Each of you owns an undivided fractional interest in the whole. This is the classic co-tenancy scenario governed by New York co-tenancy and partition law, discussed below.
• The property was solely owned by the decedent and passes to multiple heirs. In New York, real property vests in the decedent's distributees or beneficiaries immediately upon death (subject to the estate's administration), so co-heirs typically become tenants in common once the estate transfers title. Until then, the executor or administrator controls access and disposition of the realty.
• The occupant has no ownership interest at all. A surviving partner, friend, or non-heir family member living in the home without title has no right to remain and can be removed by ejectment once a fiduciary is appointed.

Pinning down the title structure is the single most important first step, because it determines whether you proceed as a co-tenant (partition) or as a fiduciary (ejectment), and whether the occupant has any defense at all.

The New York "No-Rent" Rule and Its Critical Exception

New Yorkers are often surprised to learn that, as a general rule, one tenant in common who occupies the entire property does not owe rent to the other co-tenants simply for living there. Each co-tenant has an equal right to possess and use the whole property. Mere occupation by one is not a wrong to the others.

The controlling exception is ouster. The Court of Appeals in Jemzura v. Jemzura, 36 N.Y.2d 496 (1975), confirmed the long-standing rule that an occupying co-tenant becomes liable to the others for the reasonable value of use and occupancy only where there has been an ouster — that is, where the occupant has actually and physically excluded the other co-tenants, or has denied their equal right to possession. Until ouster, no rent obligation arises; after ouster, the occupant must account for the fair rental value attributable to the excluded co-tenants' interests.

Practical examples of ouster recognized by New York courts include:

• Changing the locks and refusing to provide keys to the other co-tenants.
• Telling the other co-tenants, in words or conduct, that they may not enter or use the property.
• Claiming exclusive ownership and treating the property as solely the occupant's own.
• Refusing a co-tenant's demand to be let in or to share possession.

This is why documentation matters. A written demand for access or for joint possession — followed by the occupant's refusal — can establish the ouster date from which fair rental value begins to accrue. Without that record, an occupant can credibly argue that the other co-tenants simply chose not to live there.

Carrying Costs: A Powerful Lever Even Without Ouster

Even where you cannot prove ouster, the financial accounting between co-tenants is rarely a wash. Each tenant in common is responsible for a proportionate share of the property's carrying costs:

• Real property taxes.
• Mortgage principal and interest.
• Homeowner's insurance.
• Necessary repairs and maintenance (though not voluntary improvements, which are treated differently).

A co-tenant who pays more than their share has a right of contribution from the others. But the reverse is also true: when the occupying co-tenant demands contribution toward taxes, mortgage, and insurance, the non-occupying co-tenants can assert their use-and-occupancy or ouster claims as an offset. New York courts routinely net these competing claims against each other in the final accounting, so an occupant who insists the others reimburse carrying costs often invites a counterclaim for the rental value of their exclusive possession.

The Partition Action Under RPAPL Article 9

When co-tenants cannot agree on whether to sell, who occupies, or how money should change hands, the definitive remedy is a partition action under RPAPL Article 9. Any person holding an undivided interest as a tenant in common (or joint tenant) may bring the action in Supreme Court in the county where the property is located. RPAPL 901 establishes the right; RPAPL 915 authorizes a sale where physical division would cause great prejudice.

The court can order either:

• Partition in kind — physically dividing the land among the owners. For a single-family residence this is almost never feasible.
• Partition by sale — selling the property (commonly by referee at public auction) and distributing the net proceeds. This is the typical outcome for an inherited home.

The partition court sits in equity and conducts an accounting as part of the proceeding. Before the proceeds are divided, the court adjusts each share to account for:

• Excess carrying costs paid by any co-tenant (contribution).
• The fair rental value chargeable to a co-tenant who ousted the others.
• Rents an occupant collected from third-party tenants.
• The value of improvements that genuinely enhanced the property.
• Damages for waste or mismanagement.

In other words, the rent issue and the partition issue are usually resolved together. The occupant who lived rent-free after an ouster typically sees the fair rental value charged against their share of the sale proceeds.

A Step-by-Step Roadmap When You Are a Co-Heir or Co-Tenant

1. Confirm title. Obtain the deed and, if the property passed through an estate, confirm whether title has been transferred to the heirs or still requires the fiduciary's deed.
2. Open the estate if necessary. If the decedent owned the home and no fiduciary has been appointed, petition Surrogate's Court for letters testamentary or letters of administration. Until appointed, you generally lack standing to evict or recover rent on the estate's behalf.
3. Make a written demand. Demand joint possession or access, or demand that the occupant pay fair-market rent going forward. This both opens settlement discussions and helps fix an ouster date.
4. Get an appraisal and a rental valuation. An independent appraisal supports both a buyout price and a fair-rental-value claim.
5. Attempt settlement. A negotiated buyout, cooperative sale, or written rental agreement almost always costs less than litigation.
6. File a partition action in Supreme Court if settlement fails, requesting a sale and an accounting that charges the occupant for use and occupancy.

Timeline and Typical Costs of a New York Partition Action

A contested partition in Supreme Court commonly takes roughly nine months to two years from filing to closing, depending on the county's calendar, whether the occupant disputes the right to partition, and how complex the accounting is. Uncontested matters where the parties cooperate on a sale can resolve faster. Costs vary widely with the level of dispute, but parties should budget for the court filing fee, a referee's fees (the referee often handles the sale), an appraisal, title work, and attorney's fees. Importantly, RPAPL 981 allows the court to award costs and allowances out of the proceeds, so litigation expenses are frequently apportioned among the co-owners rather than borne entirely by the party who sued.

Ejectment When the Occupant Has No Ownership Interest

If the person living in the home is not a co-owner — for example, a non-heir relative, a former companion of the decedent, or a holdover with no title — the remedy is an ejectment action brought by the duly appointed executor or administrator. Because real property generally vests in the heirs subject to the estate's administration, the fiduciary has the authority to take possession, manage, and dispose of the realty as needed to administer the estate. Ejectment proceeds in Supreme Court; the court issues a judgment of ejectment and, if the occupant does not leave, the sheriff executes it. If the occupant has lived there long enough and claims the property as their own, you may also need to consider adverse possession defenses under New York law.

A Note on Jurisdiction: Surrogate's Court vs. Supreme Court

New York divides authority over these disputes. Appointment of a fiduciary, accountings, surcharge of an executor, and removal proceedings belong in Surrogate's Court. Partition actions and ejectment actions are brought in Supreme Court. Choosing the correct forum — and understanding when both may be involved — is one of the more technical aspects of these cases and a frequent reason claims stall.

When the Occupant Is the Executor

If the person living rent-free is the estate's executor or administrator, the analysis shifts to fiduciary law. An executor who occupies estate property without paying rent is using estate assets for personal benefit, which raises both a conflict of interest and a potential breach of fiduciary duty. Remedies include removal under SCPA 711, a surcharge for the fair rental value in the executor's accounting, and possible forfeiture of commissions for misconduct. Because that scenario turns on fiduciary rather than co-tenancy law, we address it in detail on our page on removing an estate fiduciary in New York.

Frequently Asked Questions

Can I charge my sibling rent for living in our deceased mother's house?

Not automatically. If you are both tenants in common, your sibling generally owes no rent merely for occupying the home — unless they have ousted you by excluding you from the property. If you demand joint access and they refuse, that refusal can establish ouster, after which you may recover your share of the fair rental value, typically in a partition accounting.

My brother lives in the inherited house rent-free. How do I force a sale?

If negotiation fails, you can file a partition action under RPAPL Article 9 in Supreme Court. The court can order the home sold and conduct an accounting that charges your brother for use and occupancy if an ouster occurred. See our dedicated page on a brother living rent-free in the inherited house for that specific fact pattern.

Do I have to wait for probate to remove someone from the house?

If the occupant has no ownership interest and the property belonged solely to the decedent, you generally must be appointed as executor or administrator before bringing ejectment, because the fiduciary controls the realty during administration. If you are already a co-owner by deed, you can pursue partition without waiting on the estate.

Can the occupant offset rent by demanding I pay half the mortgage and taxes?

They can seek contribution toward carrying costs, but you can assert your use-and-occupancy or ouster claim as an offset. New York courts net these claims in the partition accounting, so an occupant who demands contribution often invites a counter-charge for rental value.

Speak With a New York Estate Litigation Attorney

Disputes over who lives in an inherited home — and who pays for it — combine real property law, estate administration, and family dynamics. Getting the form of title, the forum, and the ouster evidence right early can save substantial time and expense. The Law Offices of Albert Goodwin handle co-tenancy, partition, ejectment, and estate disputes throughout New York, with offices in Manhattan, Brooklyn, and Queens. Call 212-233-1233 or email [email protected] to discuss your situation.

This article is general information about New York law and is not legal advice. Statutes cited include RPAPL Article 9 (partition), EPTL provisions governing a fiduciary's authority over estate realty, and SCPA 711 (removal of a fiduciary). Reading this page does not create an attorney-client relationship. For authoritative text, consult the New York Consolidated Laws and the New York State Unified Court System.