The Difference Between Occupation and Possession in Real Estate

As a landlord or property manager, it’s essential to understand the differences between occupation and possession when managing rental properties. This knowledge is crucial, especially in situations where tenants accuse landlords of illegal lockouts.

While many might assume that occupation and possession are the same thing, these concepts hold different legal meanings and implications in the real estate world. Knowing the difference can help landlords navigate legal disputes more effectively and avoid costly legal pitfalls.

Occupation vs. Possession: What’s the Difference?

Occupation refers to a person physically residing in a property, using and occupying the space. However, possession refers to a legal right or claim to control and use the property, including the right to exclude others from it.

In simpler terms:

• Occupation means a person is physically present and living on the property.
• Possession refers to having the legal authority and right to live on the property.

While occupation suggests that someone lives in the space, it does not necessarily grant them the legal right to possess the property. This distinction becomes significant in cases of illegal lockouts, where an individual may be occupying a space without possessing the legal right to do so.

What Do the Differences Between Occupation and Possession Mean for Landlords?

For landlords, this difference is crucial when dealing with tenants or unauthorized occupants. While tenants with a valid lease agreement possess both legal possession and occupation rights, unauthorized occupants, such as guests or unapproved subletters, may only occupy the property without having possession rights. This is where legal conflicts arise, especially in scenarios involving lockouts.

If a landlord locks someone out, it could lead to accusations of illegal eviction or deprivation of possession. However, landlords have legal defenses that can be invoked to justify their actions, particularly in cases where the occupant has no legal right to possession.

The Doctrine of Futility in Lockout Situations

One defense that landlords can use in these cases is the doctrine of futility. This legal principle argues that restoring an occupant to possession is pointless if a subsequent lawful eviction is inevitable. Essentially, even if the occupant is locked out, restoring them to possession would only delay the inevitable outcome—an eviction.

A key point to remember is that the doctrine of futility is not a carte blanche for landlords to lock out any occupant. Each situation requires a careful legal analysis, as courts look at the facts of each case to determine whether the doctrine can be applied.

Case Study: BBG’s Successful Defense of a Landlord

Let’s dive into a real-world example to illustrate how the doctrine of futility can be applied.

In a recent case, Belkin Burden Goldman, LLP (BBG) represented a landlord accused of illegally locking out a home care attendant. The home care attendant had been residing in the apartment of the recently deceased tenant of record, where she had worked as a full-time caregiver since 2018. After the tenant passed away, the landlord locked her out, leading the home care attendant to file an illegal lockout proceeding, seeking immediate restoration to the apartment.

At the court hearing, the home care attendant argued that she had gained legal possession of the apartment based on two factors:

1. Continuous residence in the apartment for over four years.
2. A non-traditional familial relationship with the deceased tenant.

She claimed that, instead of locking her out, the landlord should have initiated a formal holdover proceeding to recover possession of the apartment. A holdover proceeding is typically used when a tenant stays in the property after the lease expires, allowing the landlord to regain possession through the legal eviction process.

BBG, however, presented a different argument. The legal team emphasized that the home care attendant had no legal possessory right to the apartment. There was no established familial relationship or other entitlement that granted her succession rights to the apartment. Most importantly, BBG used the doctrine of futility to argue that restoring the home care attendant to possession would be pointless, as the landlord would immediately commence a holdover proceeding, ultimately resulting in her eviction.

The court agreed with this argument, ruling in favor of the landlord. The court found that while the home care attendant had a connection to the apartment and the deceased tenant, she had not demonstrated a legal right to possess the apartment. The court deemed any restoration futile and dismissed the home care attendant’s case.

What Landlords Can Learn

While this case resulted in a favorable outcome for the landlord, it’s essential to note that the doctrine of futility should not be relied upon as a go-to defense in every situation. Each case has its own unique facts and circumstances, and what worked in this instance may not apply in others. Before taking action, landlords should carefully consider the following:

• Possession vs. Occupation: Ensure you understand whether the occupant has legal possession rights. If they do, even if they’re not currently occupying the space, taking unilateral actions like lockouts can expose landlords to legal claims.
• Lockouts Should Be a Last Resort: Locking someone out of a property without following the proper legal process can lead to severe consequences. Always ensure you have a solid legal basis before taking such actions.
• The Doctrine of Futility: While this legal defense can be useful, it should only be invoked in situations where a subsequent legal eviction is inevitable. Courts are cautious about this defense, and it is critical to have a clear understanding of the case’s facts before relying on it.
• Holdover Proceedings: If a tenant or occupant no longer has a legal right to the apartment, initiating a holdover proceeding might be the best legal course of action. It allows the landlord to regain possession lawfully and avoid accusations of illegal eviction or lockout.

Returning Belongings to Occupants

Another important aspect of illegal lockout disputes is dealing with the occupant’s belongings. Even if an individual no longer has possession rights to the apartment, they are still entitled to retrieve their personal belongings. In most jurisdictions, landlords must follow specific legal guidelines for handling abandoned property.

To avoid additional legal disputes, landlords should take the following steps:

• Notify the Occupant: If the occupant has been locked out, notify them in writing and provide a reasonable timeframe for them to collect their belongings.
• Provide Access: Arrange a mutually agreed-upon time for the occupant to retrieve their items or provide temporary access to the apartment under supervision.
• Avoid Damaging or Selling Belongings: Do not dispose of or sell the occupant’s belongings without following legal procedures. Mishandling an occupant’s property can result in further legal complications for the landlord.

Why You Should Contact Legal Counsel

As demonstrated by BBG’s successful representation, having an experienced legal team on your side is crucial when navigating disputes related to possession and occupation. While the doctrine of futility can be a powerful defense, landlords must understand when and how it applies to avoid unnecessary legal exposure.

Every situation is unique, and what worked in the case mentioned earlier may not apply to your circumstances. By consulting with legal professionals, you can ensure that your actions are not only legally sound but also strategically tailored to achieve the most cost-effective and favorable outcome.

At Belkin Burden Goldman, LLP, we provide landlords with a strategic analysis of their situation, helping them understand the nuances of real estate law and how to navigate disputes effectively. If you find yourself in a situation where possession or occupation is being questioned, don’t hesitate to reach out to us. We can help you achieve the best possible result while minimizing legal risks and costs.

The Bottom Line

Understanding the difference between occupation and possession is essential for landlords who want to avoid legal disputes and protect their rights. While the doctrine of futility can be a useful defense, it should only be invoked when appropriate. Every situation is unique, and landlords should seek legal counsel to ensure they’re making the right decisions. Whether you’re dealing with unauthorized occupants or managing a tenant’s belongings after an eviction, taking the right steps from the start can save you time, money, and potential legal headaches down the road.

Stay Informed and Protect Your Rights With Belkin Burden Goldman, LLP

Understand the differences between occupation and possession and navigate complex legal disputes with confidence. Contact BBG, New York’s leading Condo and Co-op law firm, for expert guidance on occupation, possession, and all your real estate needs. Schedule a consultation today to ensure your property rights are safeguarded.