I. NEW YORK'S STATUTORY TRAP: AN INVITATION TO ENTER CAN BECOME AN EXCUSE TO SEIZE A HOUSE
In April 2024, New York enacted legislation supposedly protecting property owners from squatters.
The Legislature amended Real Property Actions and Proceedings Law (RPAPL) § 711 to declare:
"A tenant shall not include a squatter."
That sounds like protection for property owners.
But examine the actual definition the Legislature adopted:
"A squatter is a person who enters onto or intrudes upon real property without the permission of the person entitled to possession, and continues to occupy the property without title, right or permission of the owner or owner's agent or a person entitled to possession."
The definition requires unauthorized entry as well as unauthorized continued occupation.
What happens when the initial entry was authorized, but the subsequent occupation was not?
That is the statutory defect challenged in Neroni v. Delaware County, Index No. EF2025-447, Amended Verified Complaint, Section VIII, paragraphs 371–388.
The complaint identifies an extraordinary range of individuals who may initially enter private property with permission:
Delivery people and mail carriers.
Contractors hired to perform repairs.
Social visitors and temporary guests.
Municipal property inspectors.
Other persons admitted for a limited purpose.
None of these individuals necessarily possesses any right to reside in the property.
Yet the definition in RPAPL § 711 makes the circumstances of initial entry central to determining whether someone is a squatter.
A person admitted to repair a leaking pipe is not thereby authorized to move into the house. A municipal inspector admitted to examine a building is not thereby authorized to occupy it.
Nevertheless, the literal wording of § 711 creates an opening for a person who initially entered with permission to argue that the statutory definition of squatter does not apply.
Paragraph 384 of the Amended Verified Complaint identifies precisely this problem, describing the legislation as:
"extraordinarily overbroad, makes no exceptions as to the reasons for invitation of people by landlords onto the property in order for them to be deemed tenants"
The complaint argues that the statute thereby encourages opportunistic claims of possession by individuals who were admitted for entirely different purposes.
The Legislature purported to protect owners against squatters while creating uncertainty concerning people who initially entered lawfully and subsequently refused to leave.
RPAPL § 713: The Legislature Refers Owners to Another Statute Without Resolving the Problem
The second defect appears in the very next sentence of RPAPL § 711.
The statute provides:
"In the event of a conflict between the provisions regarding squatters of this section and the provisions of subdivision three of section seven hundred thirteen of this article, the provisions of section seven hundred thirteen of this article shall be controlling."
What does the controlling statute actually say?
RPAPL § 713(3) authorizes a special proceeding where a person squatted upon property without permission and continued occupying it without permission, or where permission was revoked and notice of revocation was given.
This provision expressly addresses revocation of permission.
But the cross-reference does not expressly answer another question: whether the special proceeding is the exclusive lawful means of removing every non-tenant whose permission has been revoked.
Paragraph 375 of the Amended Verified Complaint identifies that omission:
"RPAPL 713 does not indicate whether evictions through courts constitute an exclusive remedy for removal of non-tenants."
That is not an academic concern.
New York's legal system recognizes distinctions between tenants, licensees, invitees, and trespassers.
The Legislature has provided judicial procedures for recovering possession in specified circumstances.
But the existence of an available judicial remedy raises the question whether it eliminates every otherwise lawful method of removing a trespasser.
The complaint challenges the failure to define that boundary clearly, especially when the owner's conduct may subsequently be characterized as a criminal unlawful eviction.
RPAPL § 768: Criminal Punishment for Owners Who Guess Wrong
The third statute supplies the enforcement mechanism.
RPAPL § 768 protects specified occupants who have lawfully occupied a dwelling for thirty consecutive days or entered into a lease.
It prohibits specified methods of removing those occupants without lawful authority.
The prohibited conduct includes force, threats, interference with essential services, removal of possessions, and changing locks to prevent lawful occupancy.
Violations can constitute a class A misdemeanor.
The statute also authorizes civil penalties of $1,000 to $10,000 per violation, with additional daily penalties in specified circumstances involving failure to restore occupancy.
Thus, the statutory scheme creates a serious asymmetry.
An occupant can claim that the original entry was authorized.
The owner can maintain that permission was limited and subsequently revoked.
Police may decline to determine the occupant's legal status.
And the owner contemplating removal must evaluate the possibility of criminal prosecution and substantial financial penalties.
The government has made the consequences of an incorrect classification severe while leaving important boundaries of the classification open to dispute.
The Attorney General's own published enforcement guidance illustrates the significance of the initial-entry question.
It instructs police to determine whether the occupant lawfully entered and whether the occupant has a lease or has occupied the dwelling for more than thirty days.
It expressly includes certain licensees among persons protected after thirty days of lawful occupancy.
The result is a framework in which the original circumstances of entry, the duration of occupancy, the withdrawal of permission, and the existence of possessory rights may all become contested questions.
For an owner confronting an unauthorized occupant, those distinctions determine whether immediate removal is lawful or exposes the owner to criminal and civil prosecution.
The Missing Common-Law Right of Ouster
The Amended Verified Complaint raises a further constitutional issue.
Paragraphs 376 and 380 invoke the common-law right of ouster of trespassers.
Paragraph 376 asserts that this right predates the New York Constitution and is preserved by Article I, § 14.
That constitutional provision preserves the common law as part of New York law, subject to lawful alteration.
The complaint contends that the Legislature's creation of special eviction proceedings did not necessarily abolish the existing common-law right to remove trespassers without judicial process.
Paragraph 383 challenges the combined operation of RPAPL §§ 711, 713, and 768 as vague, overbroad, and susceptible to arbitrary enforcement, including interference with that claimed constitutional protection.
The question is specific:
Where has the Legislature clearly abolished the common-law right of ouster of non-tenants, and where has it established that RPAPL § 713 is the exclusive remedy in every disputed-occupancy situation?
If those questions are unresolved, the consequences are borne by the owner.
Good Cause Eviction: Even the Number of Residential Units Becomes a Disputed Question
The 2024 Good Cause Eviction Law, Real Property Law Article 6-A, introduces additional restrictions on recovering possession of covered residential accommodations.
Real Property Law § 211 defines a small landlord by reference to ownership of no more than ten units statewide, subject to applicable local provisions.
But the Amended Verified Complaint, paragraphs 394–396, identifies an important omission.
What constitutes a "unit" when a building is classified as residential for taxation purposes but cannot lawfully be occupied?
Is a unit a building?
An apartment?
A separately rentable room?
Does an uninhabitable house count?
Does a house undergoing reconstruction count?
What about a building vacated pursuant to a municipal code-enforcement order but still listed as residential on the tax rolls?
The complaint identifies four such buildings in Delaware County.
These distinctions affect whether an owner qualifies for the small-landlord exemption and whether statutory restrictions govern termination or nonrenewal of existing tenancies.
The classification of uninhabitable buildings as residential property can therefore have consequences beyond taxation.
A building may be too damaged to house anyone, yet its classification may still affect the owner's obligations under housing legislation.
The statute supplies a numerical threshold but does not expressly resolve every question concerning the treatment of uninhabitable buildings.
That creates another opportunity for disputed interpretation and enforcement.
Why Elderly, Disabled, Retired, and Out-of-State Owners Bear a Disproportionate Burden
Paragraph 399 of the Amended Verified Complaint directly identifies the consequences:
"GCEL has a disparate impact upon elderly and disabled absentee property owners and landlords"
It further alleges that the State and local governments can use the legislation to resolve their housing problems at property owners' expense.
The mechanism is concrete.
An out-of-state owner depends on local officials to investigate unauthorized occupation.
An elderly or disabled owner may be unable to travel, inspect damage, supervise repairs, or attend repeated proceedings.
A retired owner may have limited resources for prolonged litigation.
Meanwhile, the owner remains responsible for taxes, maintenance, insurance, and code compliance.
An occupant who refuses to leave may remain while the owner pursues judicial remedies.
The government may avoid providing alternative housing.
And the property may continue deteriorating.
The owner bears the financial consequences of statutory uncertainty while the government controls the practical machinery of enforcement and benefits from its non-enforcement by utilizing the owner's vulnerability created by the statutory schemes to use the house for the unhoused individuals - including just-released convicted heroin dealers.
If a local agency has an independent interest in keeping the occupant at the property, the opportunity for selective enforcement becomes particularly serious.
That interest might be avoiding public housing expenditures.
It might be maintaining access to an individual cooperating with narcotics investigators.
It might involve preserving a location useful for surveillance or controlled drug transactions.
The challenged statutes make such de facto seizure and exploitation of out of state owners' private property for public use - including for drug enforcement or rather drug trafficking use - possible.
The Central Constitutional and Financial Question
The interaction of RPAPL §§ 711, 713, and 768 and Real Property Law Article 6-A raises questions concerning due process, property rights, and the potential for uncompensated governmental seizures of private property.
An owner may retain title while losing effective control over possession, without effective means of regaining it before the property is completely destroyed by drugs.
Remediation of a drug-contaminated property may be costly, dangerous and may exceed in cost the former value of the property at its prime - while local municipalities continue (as they actually do in the case described) to tax the property as if it is still economically viable, in full knowledge that it is not - a stop occupancy order is on the door in this case.
An occupant may remain while legal classifications are disputed.
The government may obtain the benefit of continued housing of its CI drug dealers without assuming ownership expenses.
And the owner may ultimately bear the cost of a destroyed building.
The central question is whether New York's occupancy laws permit public agencies to shift housing and other governmental costs onto private owners through vague pro-squatter statutes, restrictions on possession, selective enforcement, and the threat of criminal prosecution.
That question becomes especially important when the occupant is a convicted drug offender useful - and likely used - by law enforcement for a supposedly public purpose.
It is the question raised by the controversy surrounding James Laughman and 201 Main Street in Delaware County.
Documentary authorities: RPAPL §§ 711, 713(3), 768; Real Property Law §§ 211, 213–216, 231-c; N.Y. Const. art. I, §§ 6, 14; New York State Office of the Attorney General, Unlawful Evictions (RPAPL § 768): Guidance for Law Enforcement; Neroni v. Delaware County, Index No. EF2025-447 (Sup. Ct., Delaware County), Amended Verified Complaint, NYSCEF Doc. 143, Sections VIII–IX, ¶¶ 371–400; Memorandum in Opposition to Motion #8, NYSCEF Doc. 202, Section VII, pp. 21–23.
No comments:
Post a Comment