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No Lease/Eviction of Family Member?


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#1 monsterinlaw

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Posted 09 September 2009 - 10:40 PM

My in-laws reside in my home and have done so the past 7 years. My husband and I are trying to get them to leave and they refuse to. When my husband was house hunting 7 years ago, they convinced him to purchase a larger one-so they could all live together because it would be easier for his monther to care for her "sick and dying" husband. He didn't have the money to purchase a larger home with room for them at the time, so they offered to pay $75,000 so that he could secure the mortgage-they had poor credit and wanted no part of the mortgage or deed. My husband felt guilty and pressured-his mother reminded him he was adopted and they owed this to him for all the years they raised him- he reluctantly agreed. They moved up from South Carolina into his new home.  Since then we have had numerous issues with them, all but the last we tolerated. In an argument over pruning a bush in my yard, my father-in-law slapped me accross my face and I filed a restraining order against him. We have since asked them to leave our home and they refuse, saying we need to buy them out. They have lived rent free the last 7 years, paying no taxes, no utilities, and only creating headaches. After they went door to door to our neighbors to preach to them how we are horrible people who "stole" all their money and are trying to throw them out on the street, we hired an attorney. Our attorney attempted to bring an eviction, however, he recently informed us that in the state of New York, there is a new law that you cannot evict a family member. Is this true? He now states he must file some other type of petition to have them removed. I am frustrated and upset. The local police department wont help us-they too feel sorry for them and my in-laws have threatend us with filing a petion to the court that we are discriminating against them because they are old. They have made it clear they refuse to leave. We have already gone to family court over the matter involving my father-in-law hitting me and the judge suggested since their name isnt on the deed they leave. That was 2 months ago and we still havent gotten them out. Legally, what are our options??? Are we considered a landlord??? Are they considered a tenant??? Anyone know about this new law preventing an eviction of a family member??? My attorney isnt responsive. He met with the defendants attorney behind closed doors to discuss them leaving. Is there any way we can obtain a copy of what was said in the meeting with the judge? Our attorney's are friends and my husband is starting to question his actions. I understand our attoney has an oath to represent us, however I suspect he made an arragement with the other party to allow them more time in our location before they need to leave when we have clearly stated we want them removed. I dont feel confident about the representation we have recieve thus far...unfortunately we don't have extra money to retain another attorney and, in consulting local lawyers, no one wants to help us because this is a messy situation that involves multiple areas of law. Please help....



#2 Fallen

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Posted 10 September 2009 - 04:04 AM

In future, please break up text into paragraphs; big blocks are harder to read online.

A little too much extraneous commentary.


You don't bother describing whether this $75,000 was a loan, a gift, or whether the parents are arguing a partnership/investment in the property.  Regardless, that doesn't mean they have an actual ownership interest in the home such that they can avoid an eviction if you pursue one.  Essentially, any deal to purchase real estate (or a part of real estate) must be in writing to be enforceable.  If they want to argue an investment in the property or a partnership agreement, they'll have to do that separately.  Your average judge will tell them that since their name isn't on the deed, if they want to argue it was a loan or investment, they'll need to sue your husband -- but that doesn't mean they're entitled to avoid eviction if you want them out.


I'd probably argue, at best, the $75,000 was essentially rent paid in advance.  I have no idea what kind of space they're taking up or what the pro rata fair market value rent is on their space use, but you can talk with a realtor about that.  Let's say it's $900 a month averaged over seven years, never changing despite the market, including utilities -- voila, they've used up their $75k worth.  (Granted, if you want to use that argument, you'll probably want to talk with a tax attorney about declaring that income if you can't prove it was a gift.) 

I'd feel free to record any conversations with the parents without telling them, since NY is evidently a one-party consent state (and you or husband would be the one party consenting). 


"Our attorney attempted to bring an eviction, however, he recently informed us that in the state of New York, there is a new law that you cannot evict a family member."

I don't know what you mean by "attempted to bring an eviction".  Either he filed an eviction action and it was tossed out/you lost or he didn't.  If this attorney is a real estate attorney who handles landlord-tenant law, he's either an idiot or he's nuts; ask him to give you a copy of this supposed new law.  Personally, I'd just fire him and start reading up on eviction paperwork in a local law library (assuming local landlord-tenant court doesn't make it easy for laypeople with a booklet and forms, etc.). 

It's not a matter for the police.  You need to ascertain whether in NY even if they aren't paying rent whether you have to treat them just like any other tenant in that you have to issue them a month's termination notice and then, if they refuse to move, file an eviction action.   Google "New York landlord tenant".

"Are we considered a landlord???"

Very likely; the only question is here is whether, if you are (since you may or may not want to argue they were paying rent), you first have to issue them a written notice of termination of their tenancy before you file an eviction action.  


"My attorney isnt responsive."

Then fire him and hire someone else, even if it means borrowing some money from someone, selling something, or working an extra job or two for a couple months to save up.




 


I'll echo PG's advisory "warning" with a twist: (Many) legal issues are complicated. Explanations and comments here might not fully identify or explain the ramifications of your particular problem. I do not give legal advice as such (and such is impermissible here at any rate). Comments are based on personal knowledge and experience and legal info gleaned over a quarter century, and every state has differing laws on and avenues to address most topics.  If you need legal advice, you need to consult (and pay) a professional so that you may have someone to hold accountable.  Acting on personal and informational advice from a stranger on the internet is a bad idea -- at least not without your own thorough due dilience/research and confirmation as it applies to your situation.  :)


#3 monsterinlaw

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Posted 10 September 2009 - 01:06 PM

Thank you for your response.


We have a gift letter from my husbands parents stating the 75,000 they gave him was a gift requiring no repayment. They both have signed it.


I spoke to my attorney and asked for clarification on this matter. He stated that he NYS Case Law states that we need to bring an ejection proceeding on them because they are family. He says that an ejection proceeding is like an eviction but will go before the Supreme Court instead of Family Court. I am still not understanding why we have to go this route. He mentioned that there are so many loop holes in the legal system and to protect ourselves from them filing a bankruptcy, we would need to do this. He stated if they should file bankruptcy, the judge would allow them a hardship and postpone them from leaving.


Does this mean that if we were to file an eviction the judge would throw us out or grant them an extended stay?


Our attorney says he was drawing up the eviction papers but stopped because ejection was how he has to proceed. Is this correct?


This still confuses me. In the same breathe our attorney said the next time we go back to family court we can ask the judge to have them removed. We don't go back till the middle of November! I got the impression that the ejection proceeding would probably not even be heard by this time. Why the long wait?


Our attorney specializes in family law. We hired him because he is noted as being one of the best family law attorney in our small town and needed a legal representative for the restraining order/case we brought against my in-laws in family court. I feel like this matter has become above his scope of knowledge.






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