New York Real Estate Lawyers Blog
When a tenant fails to pay their rent, or remains in a property after the expiration of their lease, legal action is often required. Smaller landlords, such as individuals owning a few properties, or people renting out a house, will consult our firm in order to use the proper legal procedures for the removal of a tenant.
The first question to be resolved is whether the action against a tenant would be a “holdover” or a “non-payment.” A holdover proceeding is where a tenant has stayed at the premises beyond the expiration date of their lease. If the tenant continues to pay their rent after a lease term has expired, it creates a month-to-month tenancy with the landlord. This means that as long as the tenant continues to pay monthly rent (usually in the same amount as they were paying at the end of the actual lease term) and the landlord chooses to deposit same, the tenancy is extended, one month at a time. If the landlord wishes to end the tenancy, he must reject all additional rent payments, and give the tenant one month’s written notice to vacate the premises. After the month has expired, if the tenant has failed to vacate, then the landlord should commence a holdover proceeding in the appropriate court. This Court is usually the local court of the town where the property is located.
A non-payment proceeding is appropriate when the tenant fails to pay rent due under a lease. When this happens, the lease should be checked for notice provisions. Notice should be given to the tenant in the manner prescribed under the lease. After written notice has been given, if the tenant has still not paid the rent in question, a non-payment proceeding should be brought in the appropriate local Court.
Either a non-payment or a holdover proceeding is brought by filing a Notice of Petition and Petition with the Court, paying the appropriate fee, and then serving the tenant in question. New York Real Property Actions and Proceedings Law governs the manner of service, as well as the timing of the service on the tenant. After service by a licensed process server, the parties appear in Court on the return date of the Petition. Several scenarios can occur at this appearance. If the tenant fails to appear, the Judge can order a Warrant of Eviction to be issued. This is a document which allows a local marshal or sheriff to physically evict the tenant and his possessions from the premises. If the tenant does appear, the Judge will often have the parties conference the case and have them attempt to reach a resolution. This resolution may be that the tenant agrees to vacate on a certain date, or any other conclusion to which the parties may agree. If the parties cannot agree, they present their case before the Judge, and the Judge will issue a ruling based on the evidence presented before the Court.
Finally, a Judgment may also be issued along with a warrant of eviction. If the tenant still owes rent to the landlord, the landlord can ask the Court to enter a judgment against the tenant in the amount of rent due, plus costs and expenses. This judgment is treated like any other legal judgment, and can be executed against the tenant’s assets, whether or not the tenant has vacated the premises.
Of course, there are many other legal issues which can arise during the course of a landlord-tenant proceeding. We recommend that any landlord consult their attorney to learn the best course of action to protect their legal rights in their property. Compliance with the technical procedures in this legal area is crucial to a satisfactory outcome.