How-To: NYC Landlord’s Guide to the Non-Regulated Holdover Evicton
Real estate in NYC is a challenge. It’s a challenge for tenants looking for affordable housing. It’s a challenge for landlord’s to get a tenant that works well with them. In my Landlord-Tenant practice, I mostly represent landlords in non-regulated (meaning no rent stabilization or rent controlled) holdovers. Plenty of people call me and want a little direction because they believe they can handle it. Moreover, they would like to save money on legal fees. I’m a fan of all-things-DIY, so here’s the unofficial NYC landlord guide to holdover evictions for non-regulated apartments.
WHEN TO USE HOLDOVER
If there is a valid and effective lease, generally the lease will control. If the issue is non-payment of rent when there is a valid lease, you will bring a non-payment action. If you, the landlord, want to apartment or space back, usually the holdover is what you’re going with.
Again, the procedure for regulated apartments, such as rent-stabilized or rent-controlled, are much more onerous and specific, and this tutorial will not cover it. The same goes for apartments where the landlord is receiving Section 8 vouchers, or the property was purchased at foreclosure. This tutorial will guide you through evicting a tenant that does not have a valid lease that is living in something like the second floor of a two or three family home.
STEP 1: IDENTIFY THE PARTIES
The first step to any case is to properly identify the parties. When commencing a case, you want to use the full name of the tenant, as well as any aliases or akas they may use, such as Mark Williams aka Mark S. Williams. You should identify each and every adult (age 18 or older) residing within the space and name them as respondents.
If you believe there are other adults residing within a space, or you’re just not sure, always add JOHN DOE and JANE DOE as respondents to represent any unknown adults occupying the space. You can always delete the JOHN DOE and JANE DOE later, so it’s a good practice to always include John and Jane Doe.
STEP 2: SERVE A PREDICATE NOTICE
Once you have decided that you want to evict a tenant and you’ve identified them, you have to serve a NOTICE TO QUIT/NOTICE OF TERMINATION on ALL PARTIES. This notice is referred to as the PREDICATE NOTICE (as it is a predicate to commencing the holdover case). The notice should identify the tenants, as well as identify the space that they occupy, and for what purpose. For instance, 123 Main Street, ‘All Rooms in Apartment 2’ or ‘All Rooms on Second Floor’, South Ozone Park, New York 11420, used for Dwelling Purposes. The notice must indicate that you, the landlord, are terminating the tenancy, requesting that the tenant vacate by a certain date that is at least thirty (30) days from the date of service of the notice, and that if they don’t vacate, that you may commence a legal action. The notice must be signed and dated by the landlord. You can find a fillable predicate notice in stationery stores.
Once the notice is prepared, it must be served on all parties at least thirty (30) days before the requested vacate date. For instance, if the requested vacate date is February 28, 2017, be sure that the notice was served on all parties on or before January 29, 2017. The best way to avoid any issues with date of service is to serve the notice well in advance. (For information on how to actually serve papers, check this out.)
Note that once the predicate notice is served, you as a landlord should not accept ANY money from the tenant (nor should you accept any rent in advance if you’re thinking about evicting the tenant). Any money accepted indicates that you are consenting to the landlord-tenant relationship.
STEP 2: STARTING THE CASE
If the tenants have not vacated by the date designated in the notice, you must then proceed to prepare, file and serve a Notice of Petition and Petition on all parties. The easiest way to accomplish this is to get a preprinted holdover form (which you can find in stationery stores or by clicking here) and fill it in. The landlord is the petitioner. The respondents are any named adults. Undertenants are generally John and Jane Doe. Be sure to properly and accurately identify the property (which you should have done in the predicate notice).
Once you have the forms filled out and signed, take them to the landlord tenant court for your county. First you’re going to pay for an index number. Then the papers will be submitted to a clerk so a court date can be issued. (You can put a date in your papers that is no less than five days and no more than twelve days from the anticipated date of service. Sometimes, though, the date you chose will already be booked, so the clerk will assign you a date and time for court.)
The clerk will keep the original Petition you signed, so be sure to make a copy or two. You will be given the original Notice of Petition back. You must then serve a copy of the Notice of Petition and Petition on all of the named tenants, as well as John and Jane Doe, if named. (Again, click here for info on serving legal papers.
STEP 3: FILING AFFIDAVITS OF SERVICE
This step is where many pro se landlords commit errors. Assuming the Notice of Petition and Petition were properly served the on the tenants (and John and Jane Doe, if named), the party that served the papers must prepare, sign and have notarized an affidavit of service indicating how they served the papers. (Be sure to prepare and sign multiple sets of Affidavits of Service – you’ll need originals later for the actual eviction.) This/these affidavits of service MUST be filed, along with the ORIGINAL Notice of Petition that you were given, in the landlord tenant court within three (3) days of completion of service. This may be one of those ‘technicalities’ you hear about on TV, but it’s a procedural requirement. A judge can dismiss your case if not properly followed.
STEP 4: POSTCARDS FOR NOTICE
Along with the Affidavits of Service, you will be required to submit with the court postcards addressed to all tenants named (including John and Jane Doe), prefilled with the case information (date and time of appearance, location, etc) with appropriate postage already on the post card. The court will take these post cards and mail them out (almost like a backstop measure to ensure tenants receive notice of the case).
STEP 5: APPEAR IN COURT
The next step is the actual court appearance. Note that if you are an individual, you must appear personally (unless you appear by an attorney). If the landlord is an entity, it must appear by attorney. When you arrive to court, there will be a calendar with all of the cases outside the courtroom. Find your case, and the number next to it. Then check in with the courtroom clerk by giving them the case number, and telling them that you are the landlord.
In NYC landlord tenant cases, the cases are first conferenced with a court attorney. You and the tenant(s) will sit with the court attorney to explore any issues in the case, as well as potential resolution. If a settlement cannot be reached, the case will generally be adjourned to a later date for trial (but also another conference).
Something to know about trial is that it often doesn’t happen the next date scheduled (or maybe even a few dates). This may be something you want to keep in mind. A settlement might be the fastest way to resolution and getting the place back, rather than waiting four months for a trial, and not seeing any money in that time.
STEP 6: HOW TO PROVE YOUR CASE TO GET A JUDGMENT
If and when you get to trial (or an inquest, in the case of a default), you still bear the burden of proving your case. Judges may help guide you, but they won’t do it for you. You have to demonstrate your ownership of the property, so be sure to take a CERTIFIED COPY of the deed to the property to show your ownership. Additionally, you have to demonstrate that you properly served the predicate notice, notice of petition and petition, and that you want your property back.
Things like repairs the tenant claims are needed aren’t defenses to the case, but may go to the judge’s decision to stay your ability to evict the tenant. If there is rent owing, be sure to identify that the tenant has not paid you for whatever months at whatever rate, and that you would like a money judgment for that amount.
STEP 7: THE ACTUAL EVICTION
In NYC, only marshals or sheriffs can conduct an eviction. To get an eviction started, call a marshal or sheriff and ask them for a list of the paperwork you need to submit. Generally, this includes a copy of any stipulation, a copy of the Notice of Petition and Petition with ORIGINAL affidavits of service, a request for final orders, as well as an initial payment. The marshal will then submit a request for the warrant of eviction, which may take a few weeks to get back. Once the warrant is issued, the marshal’s office will get in touch with you about moving forward with scheduling the eviction. You will pay the marshal or sheriff for the eviction when the date is set so they can serve the Notice of Eviction.
POSSIBLE STEP 8: AN ORDER TO SHOW CAUSE
Many times, a tenant will file an Order to Show Cause on the eve of an eviction. This is an emergency application for relief, often asking for more time to vacate the premises. The tenant has to go to court and file the order to show cause. If granted, the judge will direct the tenant to serve the OSC on the marshal, as well as the landlord. There will be a court appearance where the tenant has to demonstrate why they need more time. As a landlord, you should show up and oppose the motion, detailing the hardship you’re enduring (maybe unpaid rent or so). The judge will issue a decision as to whether the eviction may continue or is stayed for a while longer.
STEP 9: AFTER THE EVICTION
If the marshal performs the eviction, any items or effects still in the space are deemed abandoned. The big problem is when a tenant vacates prior to being evicted by a marshal, but doesn’t turn over the keys or provide notice, and leaves stuff in the space. Generally, the safe course is to proceed with the eviction and let the marshal go into the apartment. It may cost money, but it’s better to be safe rather than sorry. If the tenant has left but there’s still stuff in the apartment, and you go into the apartment or throw the stuff out, there is the possibility that the tenant can file a suit against you for trespass, damage to property, etc.
So, NYC landlords, there you go. A roadmap to a holdover proceeding in non-regulated spaces. If you have any questions, do yourself a favor and retain an attorney. Sure, there’s a cost involved, but the cost is worth it to avoid mistakes, and to avoid having to spend the time going to court.