In R* v. H* B* LLC, the Appellate Term, Second Department, addressed the rights of a lawful occupant under New York's Real Property Actions and Proceedings Law (RPAPL), particularly in light of the Housing Stability and Tenant Protection Act of 2019 (HSTPA). J.R. initiated an illegal lockout proceeding after being excluded from an apartment she had lived in for several years. The lockout occurred following the death of one tenant of record and the surrender of the lease by the sister of the other tenant, acting under a power of attorney.
The Kings County Civil Court initially dismissed J.R.’s petition, reasoning that restoring her to possession would be futile since she had not demonstrated a legal right to occupy the premises. However, the AT2 reversed this judgment, emphasizing that the HSTPA had expanded protections for occupants.
Under RPAPL 711, as amended, both tenants and lawful occupants are protected from removal except through a formal legal proceeding. Although the statute does not define “lawful occupant,” the court clarified that anyone who entered possession lawfully—such as through permission from the tenant—is entitled to protection. The only category explicitly excluded is that of squatters.
The appellate court rejected the Civil Court’s reliance on futility, holding that lawful occupants are entitled to due process before being removed, regardless of whether they ultimately prevail in a possessory claim. This marks a departure from earlier decisions that allowed courts to dismiss illegal lockout claims based on perceived futility.
In this case, it was undisputed that J.R. lived in the apartment with the permission of the tenants of record and that she qualified as a lawful occupant. Since the landlord, H* B* LLC, had changed the locks without initiating a legal proceeding, and because that constituted an illegal lockout, the AT2 ordered that J.R. be restored to possession.
The only thing futile here was the landlord’s defense.
DECISION