Landlords, get your Eviction Notice: New York City landlords can now evict tenants again.
As you may be aware, in response to the COVID-19 pandemic, there was a moratorium on evictions and foreclosures in New York. This moratorium was first introduced by then-Governor Cuomo, and extended by Interim Governor Hochul in the hopes of avoiding people being kicked out of their homes as a result of the devastating effects of the pandemic. The moratorium had been extended by New York a couple of times, with the most recent extension having expired on January 15, 2022. After a year and a half of being unable to do so, New York City landlords are (in theory) once again allowed to evict tenants from a rental property. Lots of landlords are in dire need of evicting tenants, reasons include nonpayment of rent, harassment and abuse, illegal activity, and so on. The eviction process has many steps, and one of the first ones is a proper eviction notice.
What is an eviction?
At its core, an eviction refers to an action brought by a landlord against a tenant to recover possession of a space occupied by the tenant. Eviction cases fall under the class of cases known as special proceedings, which are (in theory) supposedly faster than normal civil cases. Generally speaking, there are 2 kinds of eviction proceedings: non-payment cases, and holdover cases.
A non-payment case is a money case, and is brought when a tenant has defaulted in its obligation for payment of rent. To bring a non-payment case, there must be a valid and enforceable rental agreement. If there is no valid and enforceable lease agreement, the landlord cannot bring a non-payment case. In most non-payment cases that settle, the tenant will agree to pay any arrears by a certain date. If they do, then they get to remain in possession of the space for the rest of the lease (setting aside any other breach of the lease). If they default in repayment pursuant to that settlement, the landlord can refer the case to a marshal to carry out the eviction.
A holdover case is brought when either (1) there is no valid and enforceable rental agreement, or (2) there material lease violations. Holdover cases are about possession of a space, and not primarily about money (although a landlord may still seek unpaid rent in a holdover case). Some examples of common holdover cases include:
- attempting to evict a tenant in an illegal basement;
- attempting to evict a tenant where landlord intends on raising the rent 5% or more;
- attempting to evict a tenant that has been arrested and charged with illegal activity, in violation of the lease terms;
- attempting to evict a tenant that has materially damaged the rental unit, in violation of the lease terms.
Do I need an eviction notice in New York City to regain possession of my rental unit?
You may be wondering, “Do I need an eviction notice in New York City?” No matter the kind of case, the answer is YES, you need some kind of eviction notice to be served on the tenant to start any of the different kinds eviction process.
For non-payment cases, generally a notice of default which includes a detailed itemization of the arrears must be served on the tenant before a non-payment case may be commenced. For holdover cases, generally some kind of notice to vacate or notice of non-renewal of lease must be served on the tenant before a holdover case may be commenced.
What are the consequences if I don’t give the tenant an eviction notice to reclaim my property?
Landlords are obligated to give tenants eviction notice before they can begin the process of recovering rental property. The notice served actually constitutes a legal document – evidence that the landlord complied with the procedural requirements of the landlord and tenant laws. Failure to properly serve an eviction notice has dire consequences for a landlord – immediate dismissal of a case.
An eviction notice is commonly referred to as a predicate notice, since it is a predicate to commencing the actual case in court, and represents a formal notice to a tenant that you intend to evict them. The eviction letter served should be attached as an exhibit to the petition filed in court. If that notice is not included, the court may dismiss your eviction case immediately, which translates into more wasted time and money.
How do you evict someone who doesn’t have a lease agreement in New York City?
Under the current state of landlord and tenant laws in New York, a landlord has the absolute right to evict someone who doesn’t have a valid and enforceable lease. Unfortunately, this is not always easy to do because legal actions for evictions are very procedure-heavy. Generally, the steps to evict someone who doesn’t have a lease agreement in New York include:
- 1) serve an appropriate predicate notice;
- 2) if the tenant remains in possession of the rental space after the time in the predicate notice expires, file a notice of petition and petition in court, and serve the same on the tenant;
- 3) appear in court for all appearances up to and including trial, if necessary;
- 4) if there was a settlement that the tenant breaches, send paperwork to a marshal to evict; or if you obtained a judgment of possession after trial, send paperwork to a marshal to evict.
What kind of notice do I used for month to month tenants or holdovers in New York City?
To begin, there is no such thing as a month to month lease. A lease, by its definition, has, among other things, a start date and an end date. Thus, if a landlord and tenant filled out and signed a month to month lease document that they obtained online, the case must be a holdover case. A holdover tenant is any tenant that has remained in possession of a rental premises after the expiration of the agreed rental period, whether under a base lease or something else.
When seeking to evict a holdover tenant, it will likely require service of a notice to vacate (also called a notice of termination of tenancy). The time required to be given a tenant in a notice to vacate will depend on how long the tenant has been in possession of the property.
- For a tenant that’s been in possession of the premises for less than one year, the notice must give at least a 30-day notice for tenant to vacate before commencing the eviction case;
- For a tenant that’s been in possession of the premises for one year or more, but less than 2 years, the notice must give at least a 60-day notice for tenant to vacate before commencing the eviction case;
- For a tenant that’s been in possession of the premises for 2 years or more, the notice must give at least a 90-day notice for tenant to vacate before commencing the eviction case.
How to write an eviction notice in New York City
As mentioned previously, the landlord and tenant laws of New York are very procedure and technicality heavy. The landlord and tenant laws come from a number of legal sources, including the Real Property Laws, and the Real Property and Proceedings Laws, among others and caselaw. To properly bring an eviction case, a landlord would have to read through and understand all of these laws and procedures. There are different types of eviction notices, and each kind of notice often has a different time frame. The type of notice a landlord will have to use depends on the case they are thinking about starting, as each case differs in the minimum notice you have to give a tenant.
For example, here’s a look at the law that says a notice must be given to a holdover tenant:
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.
NY RPL Sec. 226-c
And here’s a look at the law requiring notice in a non-payment case:
The tenant has defaulted in the payment of rent, pursuant to the agreement under which the premises are held, and a written demand of the rent has been made with at least fourteen days’ notice requiring, in the alternative, the payment of the rent, or the possession of the premises, has been served upon him as prescribed in section seven hundred thirty-five of this article.
NY RPAPL Sec. 711(2)
As you may be able to gather, the procedural requirements are hidden in very confusing language. Additionally, you may note, that the each of these laws is located in a completely different set of the state laws! Worst of all, there is no form that the state or the courts have put out. Each eviction notice form gets judged on its own merits.
As a general rule, the predicate notice in a holdover case not based on a breach of the lease must include:
- the names of all known adult tenants spelled correctly, and include any AKAs if known;
- identify by address, the specific property that is being recovered, including the unit number or other identification;
- the name of the landlord;
- the date by which the tenant must vacate before the landlord starts an eviction case;
- signed by the landlord.
While this may not seem like much, little nuances, additions and subtractions to this information is the difference between a notice being acceptable to the court, and a notice that gets your case dismissed.
(I created a super simple eviction notice template creator for landlords to create their very own 90 day notice – the same notice that I use for my clients. All you have to do is enter some information, and the tool generates the notice for you, so all you have to do is print, sign and serve! You can get more information by clicking here.
Must I hire an attorney to create an eviction notice?
With the expiration of the eviction moratorium in New York City, landlords can once again initiate eviction cases. One of the first things a landlord will need is a 90 day notice. This notice is crucial to evicting a tenant. If a landlord does not provide this notice, then the case cannot proceed. The first step in creating a 90 day notice is to make sure the form is written correctly.
Just like any case, eviction or otherwise, an attorney is not required. Many landlords decide to bring their own cases, and that includes creating their own documents. Two errors that I’ve seen cause countless cases brought by self-represented landlords to be dismissed include: (1) they failed to serve a proper notice to quit; and (2) they failed to serve documents correctly.
A defective notice to vacate is an incurable notice – meaning that you cannot correct it later on in court while the case is ongoing. If one or more of your documents is defective, then the case will be dismissed, and you will have to start all over again.
To circle back to the question, no, you are not required to hire an attorney to create an eviction notice. However, if you do not have a lot of experience with legal documents, it might be a good practice to hire a lawyer. As a second option, there are services that offer to prepare your notice of eviction for you. With these document builders, you provide some information, and the tool produces a document for you. One such tool is the 90 Day Notice Builder that I created, which is specifically designed to create a 90 day notice to vacate for holdover tenants.
Don’t Wait to Start Your Eviction Process! Get your 90 Day Notice to Vacate Now!
If you’re a landlord struggling to make ends meet because you have a tenant that’s taken advantage of your over the course of the pandemic, it’s time to start your eviction process. In summary, the eviction moratorium is over here in New York. Evictions, which are legal actions to recover possession of a rented space, have many procedural elements. One of those elements is that a tenant get served with a formal letter – some kind of notice – before a landlord starts the eviction. For many holdover tenants, a 90 day notice to quit will be the right notice.
Unfortunately, there are many technicalities for these documents. That’s why I created the 90 Day Notice to Vacate Builder. If you are looking to start an eviction of a holdover tenant, this tool may be able to help you create the correct notice quickly and easily. As a matter of fact, it’s the same notice that I use in my eviction cases. Just put in some basic information, like tenant names, the property street address and zip code, and landlord name, and for a small fee, you will receive a 90 day notice to vacate pdf to print, sign and serve! It’s that simple! Get started with your 90 Day Notice to Vacate right now!