New Law will make it much more difficult for landlords to evict tenants
If you ask any landlord in NYC that’s had to evict a tenant in the past, and they’ll probably share with you that it’s one of the most difficult experiences that they’ve had to endure being a landlord. Adjournments, whether at the request of a tenant or administratively by the court. Multiple orders to show cause being filed even after a marshal serves the notice of eviction. Heck, I’ve even had the court lose a case file, so a warrant of eviction could not be issued. What if I shared with you that the law is about to make it more challenging to evict a tenant?
Eviction cases are tough because they are inlaid between the understanding that a dwelling involves the livelihood of a person – it’s where a tenant lives – versus the reliance that many (if not most) landlords have on the income to support themselves and their families. When an eviction could cost anywhere from six months to a year or more to complete, every day that passes while an eviction case is pending equals damage to a landlord.
Well, I’m not sure what kinds of discussions were had in the state and city legislatures, but evicting a tenant is about to become much tougher. Several tenant protection measures were passed this summer that increased the procedural requirements to evict a tenant, as well as safeguards to protect tenants from harassment and discrimination.
Here, we’ll look at one of those changes in the law that involves one of the procedural requirements of an eviction case, the predicate notice. For purposes of this discussion, we’ll assume that we’re talking about a two family house, where the landlord lives on the first floor, and tenant lives on the second floor, and that there was no lease between the parties.
Previously, to evict a tenant, the landlord would have had to serve a 30 day notice (the “predicate notice”). This notice would name the tenants, describe the premises, and describe to the tenant that the landlord intends on terminating the tenancy. Moreover, the notice would include a date by which the tenant would have to vacate. If the tenant didn’t vacate the apartment, that the landlord would commence an eviction proceeding.
This notice, required by section 232-a of the Real Property Law, states:
No monthly tenant, or tenant from month to month, shall hereafter be removed from any lands or buildings in the city of New York on the grounds of holding over his term unless at least thirty days before the expiration of the term the landlord or his agent serve upon the tenant, in the same manner in which a notice of petition in summary proceedings is now allowed to be served by law, a notice in writing to the effect that the landlord elects to terminate the tenancy and that unless the tenant removes from such premises on the day on which his term expires the landlord will commence summary proceedings under the statute to remove such tenant therefrom.
Thus, the notice would have to be served on the tenant at least thirty days before the termination of tenancy date. If the tenant didn’t move out, then the landlord can proceed with commencing an eviction case.
This will all change as of October 12, 2019. As mentioned above, a host of laws were passed that will make it tougher to evict tenants. One of these laws changed the requirements of the predicate notice, basing it on how long a tenant has resided in an apartment. What the New York State legislature created (and applicable here in NYC by Real Property Law Section 232-a) was Section 226-c of the Real Property Law.
What 226-c does is increase the period of time that the notice has to be served prior to the commencement of an eviction case. Specifically, the language of the statute reads:
Notice of rent increase or non-renewal of residential tenancy. 1. Whenever a landlord intends to offer to renew the tenancy of an occupant in a residential dwelling unit with a rent increase equal to or greater than five percent above the current rent, or the landlord does not intend to renew the tenancy, the landlord shall provide written notice as required in subdivision two of this section. If the landlord fails to provide timely notice, the occupant’s lawful tenancy shall continue under the existing terms of the tenancy from the date on which the landlord gave actual written notice until the notice period has expired, notwithstanding any provision of a lease or other tenancy agreement to the contrary. 2. (a) For the purposes of this section, the required notice shall be based on the cumulative amount of time the tenant has occupied the residence or the length of the tenancy in each lease, whichever is longer. (b) If the tenant has occupied the unit for less than one year and does not have a lease term of at least one year, the landlord shall provide at least thirty days’ notice. (c) If the tenant has occupied the unit for more than one year but less than two years, or has a lease term of at least one year but less than two years, the landlord shall provide at least sixty days’ notice. (d) If the tenant has occupied the unit for more than two years or has a lease term of at least two years, the landlord shall provide at least ninety days’ notice.
Thus, the effect of this law is as follows. If a tenant has been residing within an apartment for less than one year, then the landlord can serve the traditional thirty day notice prior to commencement of an eviction case. If a tenant has been residing within an apartment for one year or more but less than two years, then the predicate notice must be served at least sixty days prior to the commencement of an eviction case. Finally, if a tenant has been residing within an apartment for two years or more, then the landlord must serve a ninety day predicate notice prior to the commencement of an eviction proceeding.
Many of the landlords I work with rely on the rental income generated by their apartments to pay their mortgage and regular monthly expenses. Even as the law operates now, an eviction case always has an adverse impact on the income received by a landlord. Moving forward, this law will likely aggrandize the impact of a landlord tenant case on a landlord, the reason being that landlords generally do not see any rental income from a tenant during the pendency of a case.
It will be interesting to see how this change to the law plays out in the coming months. While it’s an admirable attempt at addressing housing policy in NYC in the face of a housing shortage, there will likely be collateral damage that the New York State and New York City legislatures did not consider.