Sister or Brother Living Rent-Free in an Inherited House in New York

By Albert Goodwin, Esq., Law Offices of Albert Goodwin, New York estate litigation attorney.

A parent dies. One sibling stays in the house, pays no rent, and will not discuss selling. The other siblings are left paying for a share of a property they cannot use. This guide explains what New York law lets you do about it. The answer depends on two facts: whether the house is still owned by the estate or has already passed to the heirs, and whether the sibling who lives there holds letters from the Surrogate's Court as executor, administrator, or trustee. It makes no legal difference whether that sibling is your sister or your brother. The same rules apply.

Start by answering one question: who owns the house right now?

Under New York law, title to a decedent's real property vests in the devisees named in the will, or in the distributees if there is no will, at the moment of death. That title is subject to the fiduciary's power to take possession of the property, collect rents, manage it, and sell it if needed to pay debts or carry out the will (EPTL 11-1.1(b)(5)). In practice this creates two phases:

• While the estate is open: the executor or administrator controls the house. The fiduciary decides who lives there, on what terms, and when it is sold. Disputes belong in the Surrogate's Court.
• After distribution: once the fiduciary deeds the house to the heirs, or once the estate is closed and the heirs hold title outright, the siblings own it as tenants in common. A gift or inheritance to two or more people creates a tenancy in common unless the instrument says joint tenancy (EPTL 6-2.2(a)). Disputes among tenants in common are resolved by partition in the Supreme Court.

If you are not sure which phase you are in, check whether letters were ever issued and whether a deed from the estate to the heirs was recorded. The rest of this guide is organized around the three situations that come up most often.

Situation A: the house is still in the estate and your sibling is not the fiduciary

Here the occupying sibling is simply a beneficiary living in estate property. The executor or administrator has the power and the duty to deal with that. A fiduciary who allows one beneficiary to live rent-free for years, with no benefit to the estate, risks personal liability to the other beneficiaries.

The fiduciary's options include:

• Charging use and occupancy: the fiduciary can require the occupant to pay a monthly amount equal to the fair rental value, or can agree that the amount will be deducted from the occupant's distributive share at the end of the estate.
• A written occupancy agreement: a short agreement setting rent, who pays taxes and insurance, and a move-out date tied to the sale.
• A summary holdover proceeding: if the occupant refuses to pay or leave, the fiduciary can serve a 10-day notice to quit and bring a licensee holdover under RPAPL 713(7), discussed below.
• Sale of the property: the fiduciary can list and sell the house, with the occupant's unpaid use and occupancy adjusted against her share of the proceeds.

If you are a non-occupying beneficiary and the fiduciary is doing nothing, you can petition the Surrogate's Court under SCPA 2102 to compel the fiduciary to act and supply information, and you can later object to the fiduciary's accounting and seek a surcharge for the rent that should have been collected. Our page on beneficiary and executor conflicts covers the mechanics.

Situation B: the house is still in the estate and your sibling is the executor, administrator, or trustee

This is the most common and the most frustrating version. The person who is supposed to be collecting rent for the estate is the person living there for free. A fiduciary owes the estate a duty of undivided loyalty. Occupying estate property without paying for it is self-dealing: the fiduciary receives a personal benefit, and the estate receives nothing while the house wears out and the carrying costs run.

Your remedies are in the Surrogate's Court:

• Removal under SCPA 711: an interested person may petition to suspend, modify, or revoke letters. SCPA 711(2) covers a fiduciary who has wasted or improperly applied estate assets or improvidently managed them. Rent-free personal use of the estate's main asset, combined with a refusal to sell or account, is the kind of conduct that supports a removal petition. SCPA 719 lets the court act on its own motion in certain circumstances, including where the fiduciary fails to obey a court order. See our page on removing an administrator or executor in New York.
• Compulsory accounting under SCPA 2205 and 2206: you can petition to compel the fiduciary to file a judicial accounting. The court issues an order directing the fiduciary to account within a set time. Once the accounting is filed, you file objections. Our estate accounting page explains the process.
• Surcharge: in the accounting proceeding you ask the court to charge the fiduciary personally for the fair rental value of the house for the period of her exclusive occupancy, for any third-party rent she collected and kept, and for any loss in value caused by her delay in selling. The court can also deny or reduce her commissions.
• Appointment of a successor: once the court revokes her letters, a successor administrator (an administrator d.b.n. or c.t.a.) is appointed. The successor can serve a notice to quit, bring a holdover proceeding, and sell the house. Our page on breach of fiduciary duty covers the related claims.

A removal petition and a compulsory accounting are usually filed together. The accounting creates the record of what the fiduciary did; the removal petition addresses who controls the house going forward.

Situation C: the house has been distributed and you own it with your sibling as tenants in common

Once the heirs hold title directly, estate law drops out and co-tenancy law takes over. Two rules surprise most people.

First, a tenant in common has the right to occupy the whole property. In Jemzura v. Jemzura, 36 N.Y.2d 496 (1975), the Court of Appeals confirmed that a co-tenant in sole possession does not owe rent to the other co-tenants simply because she lives there and they do not. Liability for use and occupancy arises only when the occupying co-tenant has ousted the others, meaning she has excluded them from the property or refused their demand to share possession or pay.

Second, the law treats third-party rent differently. If your sibling rents out a basement apartment or a second unit and keeps the money, you may bring an action under RPAPL 1201 against a co-tenant who has received more than her just proportion of rents and profits. You do not need an ouster to recover your share of rent paid by outsiders.

Your main remedy as a co-owner is partition. RPAPL 901 gives any tenant in common the right to bring an action in the Supreme Court for partition or sale. Because a single-family house cannot be physically divided, the court orders a sale and divides the proceeds (RPAPL 915). Before the proceeds are distributed, the court conducts an accounting among the co-owners and adjusts each share for credits and charges, which is where use and occupancy, taxes, insurance, and repairs are netted out. Partition is the lever that ends the stalemate: a sibling who will not sell voluntarily cannot stop a partition sale, though she can bid at it or negotiate a buyout before judgment. See our page on partition of real property in New York.

The ouster demand letter and why the date matters

Because use and occupancy among co-tenants runs only from the date of ouster, the first step in Situation C is a written demand. The letter, sent by counsel, states that you object to your sibling's exclusive occupancy, that you demand either shared access or payment of fair rental value for your share, and that you will seek a credit for use and occupancy in any partition or sale. If your sibling refuses or ignores it, you have evidence of ouster as of that date. Every month that passes before the letter is sent is a month you likely cannot recover.

The letter also matters for another reason. Under RPAPL 541, a co-tenant in possession is presumed to hold for all co-tenants for ten years; after that, the possession can become adverse. The Court of Appeals explained the interaction between ouster and that presumption in Myers v. Bartholomew, 91 N.Y.2d 630 (1998). A documented demand and refusal protects your position on both fronts.

The letter is less central in Situations A and B. When the estate owns the house, the measuring date for a surcharge against a fiduciary is generally the date her exclusive occupancy began without benefit to the estate, because the fiduciary had a duty to collect rent from the outset. Even so, a written objection from the beneficiaries strengthens the record.

Can a family member be evicted in a summary proceeding?

New York has a line of cases holding that certain family members cannot be removed through a licensee holdover under RPAPL 713(7). The rule began with Rosenstiel v. Rosenstiel, 20 A.D.2d 71 (1st Dep't 1963), where a husband could not evict his wife from the marital home as a mere licensee. Lower courts extended the rule to other household members in some cases, which is why the original version of this page said courts refuse to treat family members as licensees. That statement is too broad. The Appellate Term in Heckman v. Heckman, 55 Misc. 3d 86 (App. Term, 2d Dep't, 9th & 10th Jud. Dists. 2017), held that a blood relationship by itself does not bar a holdover; the exception applies where the relationship carries a legal or quasi-legal obligation of support or a comparable family arrangement. Adult siblings generally do not fit that description. Results vary by court and by the facts, so the decision to file in Housing Court or District Court rather than Supreme Court requires a case-by-case judgment.

When the petitioner is the estate fiduciary, the family-member argument is weaker still. The fiduciary sues in a representative capacity, under the statutory power to take possession of estate real property (EPTL 11-1.1(b)(5)), and the occupant's permission to stay came from the decedent, not from the fiduciary personally. Lower courts have allowed executors and administrators to proceed by licensee holdover against beneficiary-relatives on that reasoning.

Mechanics of the summary proceeding:

• Notice to quit: RPAPL 713 requires at least a 10-day notice to quit, served in the manner required by RPAPL 735, before the petition is filed.
• Petition and notice of petition: filed in the Civil Court Housing Part in New York City, or in the District, City, or Town/Village Justice Court elsewhere.
• Judgment and warrant: if the petitioner prevails, the court issues a judgment of possession and a warrant executed by a marshal or sheriff, after the stay periods in RPAPL 749 and any additional time the court grants.

If a summary proceeding is unavailable, the alternative is an action for ejectment under RPAPL Article 6 in the Supreme Court, which takes longer and involves pleadings, discovery, and possibly a trial. In Situation C, ejectment is rarely needed because partition and sale accomplish the same end.

Which court hears what

• Surrogate's Court: removal of a fiduciary (SCPA 711, 719), compulsory accounting (SCPA 2205, 2206), surcharge, directions to the fiduciary (SCPA 2102), and sale of estate real property under SCPA Article 19 where the fiduciary needs court authority.
• Supreme Court: partition and sale between co-owners (RPAPL Article 9), ejectment (RPAPL Article 6), and the accounting between co-tenants under RPAPL 1201.
• Housing Court and local courts: summary holdover proceedings under RPAPL 713(7).

The Surrogate's Court has broad jurisdiction over matters affecting a decedent's estate (SCPA 201), and some judges will address occupancy disputes within the estate proceeding rather than send the parties to another court. If the house has already been distributed, the Surrogate's Court generally no longer has a role, and partition in the Supreme Court is the path.

How use and occupancy is calculated and offset

The measure is fair market rental value for the period of exclusive occupancy, not the mortgage payment or what the occupant can afford. It is proven by:

• An appraisal or rental valuation from a licensed appraiser addressing the rental market for comparable houses in the neighborhood.
• Testimony or an affidavit from a licensed real estate broker with rental comparables.
• Evidence of rent actually paid by tenants in the same house, if any unit was rented.

The occupying sibling is entitled to credits against that figure. New York courts allow a co-tenant who paid property taxes, insurance, mortgage interest and principal, and necessary repairs to recover the other co-tenants' proportionate share of those payments in the partition accounting (see Worthing v. Cossar, 93 A.D.2d 515 (4th Dep't 1983)). Improvements are treated differently from repairs: a co-tenant who renovates without the others' consent generally recovers only the amount by which the improvement increased the sale price, if anything. Ordinary utilities for the occupant's own use are not credited.

In the estate setting the same categories apply. A beneficiary who paid the taxes on estate property while living there will usually receive a credit for the estate's share when her use and occupancy is charged against her distributive share.

A worked example

Assume three siblings inherit a house in Queens as tenants in common. One sister has lived there alone. The other two sent a written ouster demand through counsel exactly 24 months before the house sells in a partition action for $900,000. Fair rental value is established at $4,000 per month. During those 24 months the occupying sister paid $18,000 in property taxes, $4,000 in homeowner's insurance, and $6,000 for a necessary roof repair.

• Use and occupancy: 24 months at $4,000 equals $96,000. The occupying sister is charged with the other two siblings' two-thirds share: $64,000.
• Carrying-cost credits: $18,000 plus $4,000 plus $6,000 equals $28,000. The occupying sister is credited with the other two siblings' two-thirds share: $18,667.
• Net adjustment: $64,000 minus $18,667 equals $45,333, shifted from the occupying sister's share to the other two.
• Distribution of $900,000: each one-third share is $300,000 before adjustment. The occupying sister receives $254,667. Each of the other two receives $322,667.

Change one fact and the numbers change. If no ouster letter had been sent, the use-and-occupancy charge would likely be zero under Jemzura, while the occupying sister would still receive her $18,667 credit for carrying costs. If the house had still been in the estate with the sister serving as executor, the surcharge period would run from the start of her rent-free occupancy, not from a demand letter, and the court could also deny her commissions. Closing costs, brokerage, and any mortgage payoff come off the top before the shares are computed. Figures above are illustrative only.

Negotiated outcomes, and when each one makes sense

Most of these disputes settle once the occupying sibling understands that partition or removal will eventually force a sale with adjustments against her share. The usual settlement structures are:

• Buyout at appraised value: the occupying sibling buys the others' shares, often financed by a mortgage, with past use and occupancy and carrying-cost credits netted into the price. See buyout of an inherited residence, and our pages on making a buyout offer and responding to one.
• Sale with a proceeds adjustment: the siblings list the house together and sign a stipulation fixing the adjustments in advance, avoiding a trial on rental value.
• Written occupancy agreement: the occupying sibling stays for a defined period, pays a set monthly amount, carries the taxes and insurance, and agrees to a listing date. This works when a parent's will expresses a wish that a child remain, or when the market is poor.
• Deed and move-out stipulation: in estate cases, the fiduciary and the occupant agree on a vacate date in exchange for a defined distribution, filed with the Surrogate's Court so that it can be enforced.

Choosing between fiduciary removal and partition is a question of ownership phase. You cannot partition a house the estate still owns; you must first get the estate administered, by the current fiduciary or a successor. Conversely, once the house is deeded to the heirs, a removal petition no longer helps, because there is no fiduciary with power over the property. If the fiduciary is also a co-owner who refuses to distribute, the sequence is removal and accounting first, then distribution, then partition if the siblings still cannot agree.

Timelines and cost expectations

Timelines vary by county and by how hard the other side fights. As general ranges in New York:

• Demand letter and negotiation: two to eight weeks.
• Licensee holdover in Housing Court: three to nine months from notice to quit to execution of the warrant, longer if the respondent raises the family-member defense or requests stays.
• Compulsory accounting and removal in Surrogate's Court: six months to eighteen months, depending on whether the fiduciary accounts voluntarily and whether objections go to a hearing.
• Partition action in Supreme Court: twelve months to two years through judgment, referee's sale, and distribution, unless the parties settle after the complaint is served, which is common.

Fees in partition and in Surrogate's Court accounting proceedings are often addressed in the final distribution; a court may allocate a portion of the plaintiff's reasonable fees among the co-owners in a partition action, and may surcharge a fiduciary for fees caused by her misconduct. Each case turns on its facts, and no outcome can be promised.

Frequently asked questions

Can my sister be forced to pay rent for living in our parents' house?

If the house is still in the estate, the fiduciary can charge her use and occupancy or deduct it from her share, and a fiduciary who fails to do so can be surcharged. If the house has been distributed and you are co-owners, she owes use and occupancy only from the date you ousted her by a written demand that she refused. She owes you your share of any rent she collected from third parties regardless (RPAPL 1201).

Can I evict my sister if she is the executor?

Not directly. While she holds letters, she controls the property. You petition the Surrogate's Court to revoke her letters under SCPA 711 and to compel an accounting under SCPA 2205. Once a successor fiduciary is appointed, the successor can serve a 10-day notice to quit and bring a holdover proceeding.

Does she have to pay rent if she maintains the house and pays the taxes?

Paying taxes, insurance, and necessary repairs earns her a credit for the other owners' share of those costs. It does not cancel her obligation for use and occupancy once an ouster has occurred, or her obligation to the estate if she is the fiduciary. The two figures are netted against each other, as in the example above. In many cases the use-and-occupancy figure is larger than the credits, but not always.

Does it matter that the occupying sibling is my brother rather than my sister?

No. The rules on vesting, fiduciary duty, ouster, partition, and holdover proceedings are the same for any sibling or other relative.

Can I just change the locks?

No. Removing an occupant without a court order can expose you to liability for unlawful eviction, and in New York City it can be a misdemeanor. Use the court process described above.

Talk to a New York estate litigation attorney

If your sister or brother is living rent-free in an inherited house and will not pay or leave, the Law Offices of Albert Goodwin can review the file, determine whether the property is still in the estate, and recommend the fastest route among a demand letter, a Surrogate's Court petition, a holdover proceeding, or partition. We have offices in Manhattan, Brooklyn, and Queens. Email [email protected] or call 212-233-1233.

This page is general information about New York law and is not legal advice for any particular situation. Statutory citations are to the New York Real Property Actions and Proceedings Law (RPAPL), Surrogate's Court Procedure Act (SCPA), and Estates, Powers and Trusts Law (EPTL).