How much notice must I give a tenant that I want to evict?

How much notice must I give a tenant that I want to evict?

Person giving notice

Eviction cases are very procedure-heavy. That is, a successful case often hinges on whether or not you followed all of the procedural requirements. In starting any eviction case, there is usually a notice required prior to filing papers in court. In the case of holdover tenants, how much notice must a tenant be given before starting an eviction case?

In most cases, prior to filing the petition in court, a predicate notice must be served. A predicate notice is a notice given by the landlord to the tenant advising that the landlord is seeking possession of the apartment, as well as the basis for seeking the apartment, if any is required by law.

Changes in the Eviction Laws

If you weren’t aware, many of the laws that govern eviction cases were amended in 2019. One of the laws introduced was Section 226-c of the Real Property Law. This new statute impacted the time that must be given to a tenant in a predicate notice.

The language of the statue reads as follows:

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.

How Much Notice Must I Give a Tenant That I Want to Evict?

In short, if you are a landlord seeking to evict a tenant, one of the first questions that you have to ask yourself is when did the tenant move in? The new law requires either a thirty-day, sixty-day or ninety-day notice to be served on the tenant. The time-limit to be used depends on the length of the tenant’s tenancy.

When Can I Use Which Notice?

  • A thirty day predicate notice may be used if: (a) the tenant has resided in the apartment for less than one year AND (b) the tenant does not have a lease term of at least one year;
  • A sixty day predicate notice must be used if: (a) the tenant has occupied the apartment for AT LEAST one year BUT LESS THAN TWO YEARS; or (b) has a lease term of at least one year but less than two years;
  • A ninety day predicate notice must be used if: (a) the tenant has occupied the apartment for AT LEAST years; or (b) has a lease term of at least two years.

Keep in mind that these predicate notice requirements also now apply in the case of a lease that is expiring. That is, prior to these amendments, if a lease expired, the landlord could go immediately to court the day after the lease expired and file the holdover petition – no predicate notice was required. Under these new laws, the predicate notice provisions apply in the case of an expiring lease – whether the landlord intends not to offer a new lease or if the landlord offers a lease with an increase in rent of greater than 5 percent.

Conclusion

As is evidenced, these changes in the law will make it much more difficult for landlords (especially smaller landlords that rely on rent to pay their mortgage) to evict tenants. In many instances, the changes in the law have increased the predicate notice time to three months, where in the past it was one month. Add in issues that may arise with defects in service, as well as adjournments in court, evictions may easily end up taking nine months or more to obtain. If you’re thinking about evicting a tenant, or if you’re a tenant that’s been served with a predicate notice, think about when the tenancy started to ensure that the predicate notice contains the correct amount of time.

If you would like to discuss an eviction, then contact the Law Office of Richard Kistnen at (718) 738-2324, or email [email protected] for more information.

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