Eviction: What Tenants and Landlords Need to Know

Every news outlet has featured stories about the home foreclosure crisis but, little attention has been paid to the impact of the economic downturn on the residential rental market. Unfortunately, both landlords and tenants have been adversely impacted by job losses, as well as a marked decrease in the value of real estate. Whether you are a tenant who has fallen behind in paying your rent or a landlord who is trying to collect rent in order to cover expenses, there are things you should know about your rights and obligations under the law.

Even if you have not entered into a written lease, you may be a party to a landlord/tenant relationship. If you are residing in a dwelling and agreed to compensate the owner of the dwelling for your use and occupancy of the space, you likely are subject to the laws governing landlord/tenant relationships. Similarly, if you continue to reside in a dwelling which you previously occupied pursuant to a written lease, you have a month-to-month lease and are likely still in a landlord/tenant relationship.

Regardless of the terms of the lease, in every residential landlord/tenant relationship there is an obligation on the part of the tenant to compensate the landlord for the use and occupancy of the landlord’s property, and an obligation on the part of the landlord to provide the tenant with a habitable space. When either party fails to meet their respective obligation, litigation is an option. However, care must be taken when seeking court intervention to resolve landlord/tenant disputes since strict adherence to the statutes that govern landlord/tenant proceedings is required.

If a tenant fails to pay the rent, the landlord cannot commence an eviction proceeding until first demanding the rent and giving the tenant the time to pay required by law. If payment is made, the landlord cannot evict the tenant for non-payment of rent. However, if the rent is not paid after receipt of the notice, the landlord can commence a non-payment proceeding to evict the tenant. To do so, the landlord must file with the court a notice of petition and a non-payment petition. The notice and petition must be served upon the tenant within a specified time period. If they are served too far in advance of or too close to the date when the landlord and tenant must appear in court, the court will dismiss the case. Dismissal may also occur if the court determines that service was not done properly or if the landlord commenced the proceeding too soon.

Even if a tenant pays his rent, a landlord can still seek the tenant’s eviction under certain circumstances. For example, if the parties are involved in a month-to-month tenancy and the landlord wants the tenant to vacate the space, the landlord can commence an eviction proceeding after first giving the tenant a notice terminating the tenancy. If the tenant does not vacate by the termination date set forth in the notice, the landlord can start the eviction process by filing a notice of petition and a hold-over petition. Again, timing is critical in that a proceeding commenced too soon, or a petition served too early or too late may result in the dismissal of the landlord’s case.

Once a non-payment or a holdover proceeding is properly commenced, both the landlord and the tenant must appear in court. If the tenant fails to appear, the court may grant the landlord a default judgment against the tenant, awarding the landlord the relief sought in the petition. If the landlord fails to appear, the court can dismiss the matter entirely. If both parties appear and cannot agree on a settlement, the court may hold a hearing. Depending on the type of proceeding, the landlord must prove that he has not been paid or that the tenant has “heldover” after the proper termination of the tenancy. The tenant has the opportunity to set forth any defenses he may have to the landlord’s claims, including proof that he paid the rent or that there is some valid basis for him to remain in possession of the property. For example, if the tenant can show that the landlord accepted rent after terminating the month-to-month tenancy, the court may find in the tenant’s favor and dismiss the case.

If the landlord is successful in presenting evidence of non-payment or a holdover, and the tenant is not able to refute the landlord’s claims or establish any defenses, a judgment of possession, warrant of eviction and, where appropriate, a money judgment in favor of the landlord will likely be forthcoming. If the tenant does not vacate the property, the sheriff’s office may be called in to physically remove the tenant and his belongings from the property.

Although the eviction process is designed to be quick compared to other court proceedings, it is not unusual for a tenant to remain in possession for two to three months after a proceeding is commenced. Courts routinely grant adjournments for purposes of the tenant retaining an attorney and/or to accommodate the schedules of the court, the parties and their attorneys. The inevitable delay not only gives the tenant time to collect funds or relocate, but knowing that relief will be delayed sometimes gives the parties an incentive to negotiate a settlement.

This article first appeared in the March 3, 2011 issue of the Times Beacon Record Newspapers.

Linda M. Toga of The Law Offices of Linda M. Toga, P.C. is an East Setauket, New York attorney with a general law practice focusing on estate planning, real estate, marital planning, small business services and litigation.