Evict a tenant for nonpayment of rent

Eviction for nonpayment of rent outside NYC

A landlord dealing with an unwanted tenant may be tempted to forcibly remove the tenant without resort to the court system, but New York, like the majority of states, has made it illegal – and potentially very costly – for landlords to take matters in their own hands.

The court system in the state of New York has a special procedure to process evictions. Enacted with the hope of resolving evictions in a timely and efficient manner, the law is a trap for the unwary landlord, with procedural pitfalls that can lead to the dismissal of a landlord’s case and the necessity of initiating a new proceeding.

Three-day Notice

If a tenant has fallen behind on rent, a landlord cannot bring a summary proceeding unless the landlord first makes a demand for rent. This demand can be oral or in writing, and must give the tenant at least three days to pay, making it clear that if the tenant fails to pay in full, that the landlord will take the legal steps necessary to evict the tenant. If the demand is in writing, it must be served on the tenant in accordance with RPAPL § 711. The landlord may personally orally demand payment but may not personally serve a written three-day notice.

Notice of Petition and Petition

If the tenant fails to pay the back rent due in full by the time allotted by the demand, the landlord can begin a special proceeding in District Court. The Court will then set a date for a hearing, and the landlord must have a Notice of Petition and Petition served on the tenant.

Like the three-day demand, the petition must include specific information or the landlord risks dismissal of their case. It must name ALL people the landlord seeks to evict, include the date set for the hearing, identify the amount of rent due, and for which months, describe the property in question, and note if the property is rent-controlled or rent-stabilized. If the tenant is the recipient of Section 8 aid, the local housing authority must also be served.

Hearing and Trial

On the date of the hearing, one of a few things may happen. If the tenant fails to appear, the landlord may request a judgment of possession and warrant. If the tenant appears without a lawyer (as is often the case) then the judge may adjourn the hearing to give the tenant time to retain counsel. If the tenant appears with counsel, or decides to proceed without counsel, then the judge will explore the possibility of settlement of the case. A settlement typically takes the form of an order setting forth a payment schedule for back rent owed. If no settlement can be reached, a date will be set for trial. Following the trial the Court may either rule in favor of the tenant, dismissing the case, or the landlord, granting a judgment of possession and warrant of eviction. The Court may stay the warrant of eviction, giving the tenant more time prior to eviction, if in the Court’s discretion such a delay is warranted.

As opposed to a holdover proceeding which seeks only to evict the tenant, the a nonpayment proceeding seeks to compel a tenant to pay all back rent owed. As such, a tenant may pay rent up until the point the judgment of possession is entered, and is entitled to dismissal of the proceeding if all back rent is paid; if a landlord fails to accept rent from the tenant prior to issuance of the judgment of possession, the landlord’s case may be dismissed.

Warrant

Once the judge issues a warrant without stay, a landlord can begin the process of eviction. The landlord must submit the warrant to the local sheriff’s department, which will set a date for eviction. Landlords in Nassau are required to pay for the actual removal of the tenant’s belongings, and also to pay for those belongings to be kept in storage in-county for thirty days.

72-hour notice

Once the sheriff’s department sets a date for eviction, the sheriff will serve a notice to the tenant 72 hours prior to the time the eviction is scheduled to take place. Once served, the tenant has one final chance to delay eviction: bring an order to show cause in District Court requesting an emergency stay of the eviction.