Did you know that you can use SCPA 2104 to Remove a Tenant or occupancy from estate property when they are interfering with the administration of the estate.
When administering an estate, fiduciaries are often faced with the challenge of recovering property that belongs to the estate but is being held—or occupied—by someone else. This includes not only personal property and financial accounts, but also real estate. A common issue arises when someone is living in a home owned by the estate and refuses to vacate. What remedies are available?
One of the most effective tools is a turnover proceeding under SCPA § 2104, especially when the occupant’s continued presence interferes with the fiduciary’s ability to administer the estate.
What Is a Turnover Proceeding Under SCPA 2104?
SCPA 2104 authorizes a fiduciary—such as an executor or administrator—to file a petition in Surrogate’s Court seeking the information about missing property or the actual return of property that is being withheld or embezzled from the estate. This includes:
- Tangible property like vehicles, artwork, and jewelry
- Intangible assets like bank or investment accounts
- Real property, including homes or land owned by the decedent
Importantly, the remedy is not limited to recovering stolen or wrongfully taken property. A turnover proceeding may also be used when someone’s possession of estate property is interfering with its proper administration.
How can I Use SCPA 2104 to Remove A Tenant or Occupant from Estate Property?
If someone is occupying estate-owned real estate—such as a family member, friend, or former caregiver—the fiduciary may be able to use SCPA 2104 to remove a tenant. In fact, you can use this proceeding to compel them to vacate. The key is showing that the person’s continued possession impedes the fiduciary’s ability to fulfill their duties, such as preparing the property for sale or distributing it under the terms of a will or the intestacy statute.
In Matter of Flender, 2019 NY Slip Op 33676(U), the Surrogate’s Court allowed an SCPA 2104 petition to proceed against a decedent’s son who refused to vacate estate property. The court held that his continued occupancy frustrated the co-executors’ ability to administer the estate and that this interference justified turnover relief. The decision is a strong example of how Surrogate’s Courts will support fiduciaries in asserting control over estate property—even when that includes removing a relative.
When a Turnover Proceeding May Not Be Enough.
While SCPA 2104 is powerful, it has limits. If the occupant has a legally recognized tenancy—for example, under a lease or based on a longstanding rental arrangement—the Surrogate’s Court may decline jurisdiction, and the fiduciary may need to pursue eviction under RPAPL Article 7 in Housing Court.
Relevant questions to consider when you want to determine whether to use SCPA 2104 to Remove a Tenant or occupant include:
- Is there a written or oral lease?
- Has the occupant been paying rent?
- Is there any documentary evidence of a landlord-tenant relationship?
If there’s a bona fide tenancy, courts generally defer to the proper landlord-tenant procedures. But when the occupant is a licensee, squatter, or simply refuses to leave, and their continued possession interferes with estate administration, SCPA 2104 is a viable and efficient remedy.
Practice Tips for Fiduciaries To Use SCPA 2104 to Remove a Tenant
- Document everything—including who is living on the property and any payment history
- Evaluate the nature of the occupancy—is the person a tenant or just someone who was allowed to stay?
- Assess whether their presence is delaying or disrupting your duties as a fiduciary
- Consult counsel early to decide whether a turnover or eviction proceeding is the proper route
Conclusion
SCPA 2104 is not just about recovering bank accounts or personal items. You can also use SCPA 2104 to remove a tenant of occupancy from estate property. Indeed it can also be used to assert control over estate real property and remove individuals who are standing in the way of proper estate administration. As seen in Matter of Flender, Surrogate’s Courts will support fiduciaries when a person’s possession of estate property becomes an obstacle to fulfilling their legal duties.
If you’re administering an estate and facing this issue, it’s important to act swiftly and use the appropriate legal tools to protect the estate’s interests. We can help you use SCPA 2104 to remove a tenant or occupant from estate property.
For more information, please contact NYC Probate Litigation, Guardianship, Probate, and Estate Planning attorney Regina Kiperman:
Phone: 917-261-4514
Fax: 929-556-2089
Email: rkiperman@rklawny.com
Or visit her at:
40 Wall Street
Suite 2508
New York, NY 10005
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