Long Island Eviction Matters: Steps to Getting an Eviction Completed
Evicting a tenant can be one of the most challenging aspects of being a landlord in Nassau County, Suffolk County, and New York City as well as the rest of New York State. Whether a tenant has failed to pay rent within a specified period, has violated lease terms, or failed to vacate the premises after his lease expires, landlords must follow a structured legal process to carry out a legal eviction. This article features some insights to help a landlord organize and breaks down some of the steps required to legally evict a tenant.
6 Steps On Your Way to Getting Your Premises Back From a Bad Tenant
1. Determine the Type of Eviction
Before commencing an eviction, a landlord must identify the type of eviction proceeding that reflects his or her situation. On Long Island, generally speaking, there are two types of eviction actions a landlord can use to evict a tenant. These are a non-payment proceeding (non-pay) or a hold-over proceeding (hold-over). The idea behind a non-pay petition is essentially “you failed to pay your rent – pay the rent or we will take you to court to evict you and obtain a money judgment for the amount you owe.” The idea behind a hold-over petition is that your tenancy is over and you are staying beyond that date IE, holding on to possession of the premises after your tenancy has expired.
The distinction is interesting and vital. If your goal as a landlord is to get paid and you want to keep the tenant and continue to get paid your rent, generally you go with the non-pay. If you need to tenant out of the premises no matter what, a hold-over is necessary. This is where an experienced landlord tenant and eviction law firm like Witkon Law can help. We have been doing 95 percent of landlord tenant actions for over 16 years through thick and thin, changes in the law, the COVID-19 pandemic, and in many different jurisdictions. Sometimes, it is not as simple as choosing a hold-over or a non-pay.
The drawback of a non-pay is the fact that if the tenant ‘cures’ (pays the rent that is due) that means the tenancy continues and the tenant gets to stay. Generally speaking, the cure is a defense to a non-pay. The benefit of a non-pay is that you get into court faster. A 14 day notice is required to be served before filing a non-pay, whereas a 30, 60, or 90 day notice is required for a hold-over.
That being said, many times an experienced lawyer will craft a beneficial strategy differently. Sometimes, we can leverage a situation where you want the tenant out, but want to be in court sooner. Contact us to discuss this because this choice is a large factor determining the time required to reach your goals.
2. Gather Your Documentation
Before our office begins work on your eviction case, we typically enjoy a free consultation with our clients. We usually consult by phone, but we are happy to meet by appointment to discuss your situation. We can consult with you in person at our office, on the phone, or even online. During the meeting, we like to get your perspective and determine the validity of the evidence at hand. If you have a written agreement, rent ledgers, and communications from the tenant, please bring them along or have them available by email. Many of our new clients have tried on their own to begin a proceeding. This is okay but we do need to see any paperwork, letters, etc that were served on the tenant. Usually, we need to re-serve the demands; but again, if you tried to send the tenant something before contacting us, it is helpful to know that in advance and see what was done.
3. Serving ‘Predicate’ Notices (Notices Before Filing a Petition)
The Housing Stability and Tenant Protection Act requires landlords to provide written notice before initiating eviction proceedings. Notice is vital to the eviction action and an eviction notice must contain certain elements in order to clearly inform the tenant of what is coming.
- For a non-pay residential action, a Rent Reminder Notice is required. Failure to send this reminder can result in a dismissal of the action. This is served five days after the rent is required to be collected (date this on the 6th of the month if rent is due on the first of the month) and reminds the tenant that rent is due and has not been received.
- For a non-pay action – 14 Day Rent Demand (“Pay Rent or Quit”) notice: A formal notice a landlord serves after a tenant has not paid rent. It gives the tenant 14 days to pay the rent owed or alternatively to vacate the premises.
- For a hold-over based on violation – “Cure or Quit” Notice: A “Cure or Quit” notice gives a tenant time to correct a lease violation within a specified period, such as unauthorized pets and subletting without a landlord’s permission, before facing eviction. The timing of such notices is generally spelled out in the lease.
- For a hold-over based upon termination of lease: Time-Dependent Notices: Demand the tenant to vacate the landlord’s property within a specified number of days depending on the tenancy duration.
- 30-Day Notice: If a tenant’s lease is a year or less, or has resided in the premises for less than one year.
- 60-Day Notice: If a tenant’s lease is at least a year and less than two years, or has resided in the premises for more than one but less than two years.
- 90-Day Notice: If a tenant’s lease is two or more years, or has resided in the premises for more than two years.
The act of serving the notices is also vital to the action. Generally these notices (except for the rent reminder which is sent certified mail) must be served pursuant to RPAPL 735. Service Under RPAPL sec. 735 – NY Housing | NYCOURTS.GOV But, the basic gist of this is that a licensed process server should be used in order to maximize your chances of success. Contact us for a free consultation and we are available to answer questions. Call 516-699-8411 for an appointment. Many times, we can give a consultation via phone on the spot.
4. Take Action to Evict Your Tenant
If your tenant fails to comply with the required notices, only after those expiration dates can file an eviction action, which involves preparing and filing a notice of petition. You must then serve it to your tenant and complete the affidavits of service. Again, service must be pursuant to RPAPL 735 and the notice of petition must now be returnable no fewer than 10 days and not longer than 17 days. Less than 10 days is considered ‘short’ service and will result in dismissal. Similarly, serving more than 17 days prior is considered ‘long’ service and will also result in dismissal.
For a non-pay action, remember that if the tenant pays you back the total amount of rent before the court hearing, you are legally required to accept his or her payment.
5. What happens in court?
On your court date, there are many possible outcomes. I will describe a few and give the benefit of experience to guide my client’s expectations.
Most of the time, the first appearance in court results in an adjournment (postponement) because of a number of factors. Mostly, it is because the tenant is entitled to it and they would be foolish not to take it unless they already have an agreement.
Many times, the tenant appears and simply requests a postponement so they can find an attorney to represent their interests. We can help tenants as well, so feel free to contact us if you were served predicate notices or a petition, or even if you showed up and asked for time to find an attorney. Just call us at 516-699-8411 and we would be happy to give a free phone consultation.
Sometimes, despite being served a proper predicate notice as well as a complete petition, the tenant simply ignores this and fails to appear in court, which is called a default. Depending on the circumstances, the Court will generally issue a warrant of eviction and judgment of possession to the landlord on the spot. Do not ignore court dates because doing this will put you at a terrible disadvantage. In order to vacate (cancel the judgment and get a fresh date) the judgment, you must file a motion called an Order to Show Cause, which will be the subject of another blog post.
Sometimes, on that first court date or a subsequent court date, the parties by way of their attorneys have a conference in front of the Court. Many times, an agreement can be reached. If not, a trial may be necessary, and that is also a subject for another blog post.
But generally, cases in Court have the following probable outcomes: Default if no one appears; stipulation of settlement (hopefully most of the cases) where the parties come to an agreement, trial if we cannot come to a reasonable settlement.
6. Remove the Tenant – Using The Sheriff or Marshall
If you receive a judgment of possession and warrant of eviction from the court, you are not quite done yet. Only the Sheriff or Marshall can lawfully remove someone from the premises. Furthermore in Nassau County and many other jurisdictions, the sheriff must have a bonded licensed mover to carry out an eviction.
This can take time, as the Sheriff must visit the premises and serve the warrant and sheriff notice, giving the tenant an additional 14 days before he shows up to physically remove them and their property. It is in this time window that many tenants will run to the courthouse and file a motion to vacate as referenced above.
In the event they do not successfully obtain an ‘stay’ (a delay in execution of the warrant from the Court), the sheriff can return after 14 days to remove the tenant and give possession back to the landlord.
We hope that this article clears things up, illustrates the pitfalls and requirements, and helps you understand the eviction process. By working with an experienced attorney, you can protect your rights as a landlord and maintain stable rental operations. For more information on dealing with cases of eviction as a landlord, contact Witkon Law for a free consultation. Our number is 516-699-8411. We would be happy to give you either an appointment or a free consultation by phone on the spot.