Q. I own a two-bedroom co-op with my father. We've lived there with my brother for the last eight years. After a recent dispute about money, my father threatened to kick us both out. I'm not worried about myself, since I co-own the apartment. But what about my brother? Can I protect him if my father decides to make good on his threat?
A. You may not be your brother’s keeper, but at least in this situation, you’ll likely be able to stop your dad from tossing him to the curb, our experts say.
“Where one of the owners of a property grants occupancy rights to an individual, it is extremely difficult for the other property owner to evict the tenant—absent fraud or evidence of serious damage or waste of the property,” says co-op and condo attorney Dean Roberts of Norris, McLaughlin & Marcus.
Aside from that, you and your brother are protected both by your co-op ownership documents and by state law, says real estate attorney Steven Wagner of Wagner Berkow.
A standard proprietary lease—the equivalent of a deed in a co-op—typically “includes brothers as members of the family that are entitled to occupy the apartment as a matter of law,” Wagner says. Second, under New York Real Property law, the tenant of record of an apartment is allowed to have someone live with them, as long as they also reside in the apartment, he adds.
What’s more, since you co-own the place, you’d have to give your consent if your father files a landlord-tenant lawsuit, says attorney Terry Oved, who heads up the real estate department at Oved & Oved. As the co-owner, if you do not “join in any action to evict [your] brother, the action cannot properly be maintained,” and a judge could dismiss it early on, he adds.
It’s possible that your father could claim he has been “physically prevented” from living in the apartment and try to charge you and your brother rent, Wagner says.
“The rule is that either owner is entitled to occupy the premises without payment, but if one owner excludes or blocks the second owner from using the apartment, the second owner may require the owner using the premises to pay a reasonable rent for its use,” Wagner says. “If that happens and you fail to pay the reasonable rent, then both you and your brother could be kicked out.”
Your father could also go to court and seek "partition" of the premises, which co-owners sometimes do if they’re not getting along, and usually results in the sale of the place, Wagner says.
Keep in mind that a welter of individual circumstances could affect this situation. Indeed, as Roberts notes, “the question looks more like the sales pitch for a new reality TV show, as there are both substantial legal and personal issues involved.”
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