Drost v. Hookey
25 Misc. 3d 210 (2009)
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Rule of Law:
A cohabiting non-marital partner who has been granted non-exclusive use of a property titled solely in the other partner's name is generally considered a licensee subject to summary eviction under RPAPL 713(7) with a 10-day notice, unless they can demonstrate a specific statutory entitlement to greater dispossession protections.
Facts:
- Robert Drost was the sole deeded title holder of the real property located at 43 Louisa Court, Northport, New York.
- Robert Drost and Kim Hookey, his then-girlfriend, resided together at 43 Louisa Court for over three years.
- Prior to moving in with Robert Drost, Kim Hookey individually owned and resided in her own separate house.
- Contemporaneously with Robert Drost's invitation for Kim Hookey to move in, Kim Hookey transferred a one-half interest in her separate house to Robert Drost in consideration of $25,000.
- The $25,000 consideration from Robert Drost was utilized to cure Kim Hookey's mortgage arrears on her separate house.
- Robert Drost recently moved out of the Louisa Court premises, alleging Kim Hookey had a medically related affliction.
Procedural Posture:
- Robert Drost (petitioner) initiated a summary proceeding against Kim Hookey (respondent) in Suffolk County District Court to dispossess her from the property under RPAPL 713(7).
- Kim Hookey, through her counsel, argued that she was a 'tenant at will' and therefore entitled to a 30-day notice to quit, rather than a 'licensee' requiring a 10-day notice.
- Kim Hookey failed to appear and testify in the action, leaving an insufficient record for the court to consider potential affirmative defenses such as constructive trust or joint venture/partnership based on the prior real estate transaction.
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Issue:
Does a non-marital cohabitant, who has been granted permission for non-exclusive use of a residence titled solely in the other partner's name, qualify as a 'licensee' under RPAPL 713(7) for purposes of summary eviction, or as a 'tenant at will' requiring greater notice?
Opinions:
Majority - C. Stephen Hackeling, J.
Yes, a non-marital cohabitant who has been granted permission for non-exclusive use of a residence titled solely in the other partner's name qualifies as a 'licensee' under RPAPL 713(7) for purposes of summary eviction, not a 'tenant at will' requiring greater notice, unless they can establish an 'opt-out' status via specific statutory entitlement. The court distinguished between a 'tenant at will' and a 'licensee,' noting that a tenant at will involves a landlord-tenant relationship with exclusive possession of a designated space, while a licensee signifies an absence of such a relationship and only unexclusive use or occupancy. In this case, Kim Hookey was granted permission to utilize the entirety of the residence without exclusive dominion and control over a specific portion, thus establishing her as a licensee. Historically, statutes like RPAPL 713(7) expanded summary eviction remedies to include common-law licensees, abrogating the common law requiring ejectment. The court rejected the 'familial relationship' exception previously adopted by some lower courts, explaining that such exceptions were premised on specific statutory protections (e.g., Domestic Relations Law for spouses, rent control laws in Braschi) rather than a broad common-law definition of 'family.' The court established that RPAPL 713(7) includes all common-law licensees except those who can claim an 'opt-out' status by virtue of inclusion in a legislative vehicle that grants them greater rights than those of a licensee. Mere cohabitation without marriage does not create property and financial rights akin to the marital relation. Since Kim Hookey advanced no argument citing an alternative statutory entitlement to greater dispossession protections, she met the common-law definition of a licensee and was subject to summary eviction with a 10-day notice. The court acknowledged the potential defense of a constructive trust or joint venture/partnership based on the transfer of the house interest but found an insufficient record to consider it due to Kim Hookey's failure to appear and testify.
Analysis:
This case significantly clarifies the legal status of non-marital cohabitants in New York for eviction purposes, favoring a narrower interpretation of exceptions to licensee status. By rejecting a broad 'familial relationship' exception in favor of a 'statutory opt-out' test, the court emphasizes that enhanced tenancy rights must derive from specific legislative enactments, not merely from the nature of the personal relationship. This decision provides property owners with a more straightforward path to summarily evict former cohabitants, potentially limiting the ability of non-marital partners to claim common-law rights or extended notice periods based solely on their shared living arrangements or perceived familial ties. It underscores the principle that cohabitation, absent marriage, does not automatically confer property or financial rights.
