No Eviction of Spouse While Divorce Action is Pending

On September 28, 2017, the Landord Tenant Part of the District Court, Nassau County, issued a decision staying a holdover action pending the resolution of a related divorce currently pending before the Supreme Court, because the property in question was potentially marital property subject to equitable distribution.

Nabeela Bashir, the respondent in the holdover action, and Irfan Taj, a non-party, were married on April 19, 2012. Irfan purchased the premises in question with his brother, Mansoor Taj, on November 13, 2014. Irfan and Nabeela lived together as a married couple in the premises with Nabeela’s son from a prior marriage, while Mansoor never lived in the home. Irfan commenced a divorce action against Nabeela on May 6, 2016.

Nabeela obtained an order in the divorce action dated September 9, 2016 granting her exclusive use and occupancy of the premises during the pendency of that action, though no order was issued by the Supreme Court directing either party to pay for the mortgage or upkeep of the home. Irfan subsequently filed for bankruptcy, and Mansoor filed the instant holdover action seeking to have Nabeela and her son evicted as a result of what he said was non-payment of the mortgage that put the property in jeopardy of foreclosure.

Nabeela presented proof that she had paid for a portion of the down payment and mortgage on the premises during the marriage, establishing it as marital property. Nabeela also argued that Mansoor had been added as a co-owner of the premises purely so that they would qualify for a mortgage, but that he otherwise never lived in or paid for its upkeep. Mansoor meanwhile alleged that Nabeela was neglecting to pay the mortgage during her period of exclusive use and occupancy and that he therefore had the right to evict her because they had no familial relationship and Mansoor was a titled owner of the property.

In a related prior action, Mansoor had sued Nabeela for conversion of rents he alleged she had collected from a subtenant on the property, but that action was stayed on August 21, 2017 until the resolution of the divorce action.

The Landlord Tenant court found that the holdover action must also be stayed pending the resolution of the divorce action because Nabeela had presented adequate evidence that the house was marital property that would be subject to equitable distribution. Prior to the resolution of the divorce, it was impossible to resolve the holdover action because Nabeela was living in the premises as the marital residence and its ownership was subject to the judgment of the Supreme Court. Once the divorce was finalized, the question of Nabeela’s tenancy in the premises could be taken back up by the Landlord Tenant court and either resolved or dismissed at that point.

This case illustrates the importance of obtaining an appropriate pendente lite order during a divorce. The order granting exclusive use and occupancy in this case apparently did not direct either party to pay the mortgage during the pendency in the action, leaving the premises in danger of foreclosure. Despite the potential risk to the property, the Landlord Tenant court was left with no recourse, as they could not take up the holdover action while the Supreme Court was still resolving equitable distribution.