Eviction

EXCEPTIONS TO THE EVICTION MORATORIUM

Eviction

By: Akanksha A Panicker

Virtually all eviction proceedings were suspended for sixty days after the state legislature enacted the Emergency Eviction Act at the end of last year. On Friday, February 26th, the delay came to an end. This means that unless a tenant submits a hardship declaration form to either the court or the landlord, currently underway eviction cases will resume, and new cases can be filed.

This indicates that any tenants facing eviction who may not have filed a hardship declaration could face legal action, as well as landlords being entitled to file new cases against tenants who have omitted to file a declaration. Consequently, only tenants who complete the hardship declaration form will have their moratorium extended until May 1st.

 Just about all tenants have been safeguarded from eviction since the end of December, seeing as cases have been paused. However, until February 26th, the moratorium security would only extend to tenants who have submitted a hardship declaration. The form itself is permitted to be filled out by May 1st to pause the case.  This form may also be presented to the marshal in charge of the eviction itself. Qualifiers to avail said the pause would need the individual to have experienced some financial hardship because of the pandemic or to prove that moving would pose a health risk.

[1.0] ABOUT THE COVID-19 EMERGENCY EVICTION AND FORECLOSURE PREVENTION ACT 

On December 28th, Gov. Andrew Cuomo signed the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (the ‘Act’) into law. The legislation seeks to protect New York State citizens adversely affected by the COVID-19 pandemic.

It was set into motion to prevent tenants’ evictions if they had lost income or accrued additional and increased expenses during the COVID-19 pandemic or if moving from their home would pose a hardship during the pandemic.

If the tenant signed and delivered the Hardship Declaration, they cannot be evicted from their primary residence under a pending case, and the landlord may not file a new case to evict them from their primary residence until at least May 1st, 2021. However, it must also be remembered that a landlord can still evict if [A.] the expiring lease itself is not renewed; [B.] the backlog for rent stretches before March of 2020 and six months’ rent or more was due on or after March 1st, 2020; [C.] The landlord wants to move into the tenant dwelling as their primary residence or if the tenant did some act that was a serious nuisance or violated their lease in a manner apart from falling behind in rent. 

The COVID-19 Emergency Eviction and Foreclosure Prevention Act expires on May 1st, 2021, but key protections under the New York State Tenant Safe Harbour Act may continue even after that date. Eviction cases pending as of December 28th in New York City Housing Court were thus suspended until February 26th, 2021. Eviction cases commenced from December 29th, 2020 through January 27th, 2021 had also been suspended for at least sixty days.

[1.2] EXCEPTIONS TO THE EMERGENCY EVICTION AND FORECLOSURE PREVENTION ACT

The legislation requires that landlords attach a blank copy of the hardship declaration form when they demand rent or file a petition for eviction. If a said copy of the form is not provided, it is necessary to record all the documents received. Thus, the moratorium also reinforces the burden of proof on the landlord: the courts assume that tenants are telling the truth on the declaration form and enforce said form on the tenant under ‘penalty of law,’ inviting legal consequences for misrepresentation. This renders the burden on the landlord to show the court that a tenant does not qualify rather than it being on the tenant to prove in court that they qualify for protection,

The definition of hardship in this document also spans a wider criterion than federal moratoria. The eligibility criteria go beyond lost income and account for challenges like added childcare expenses.

The new law also puts residential foreclosure proceedings on hold. It prevents new ones from being filed until February 26th, with the potential to put them off until May 1st if the owner fills out a hardship declaration form. The measure covers both mortgage and tax foreclosures and tax lien sales for past tax debt. The only exception is for vacant or abandoned property. The protection for homeowners encompasses a wide variety of hardships, including if a tenant has lost income and can’t pay rent.

Per custom, the major exception for eviction cases stems from the tenant causing a nuisance if said tenant engages in behavior infringing on other tenants’ use or enjoyment or creating a safety hazard. This means if a tenant is engaging in violence or illegal activity like drug dealing, they are always doing so under the continuing threat of eviction. Other behaviors traditionally considered a nuisance, like making illegal alterations to an apartment, don’t apply.

[2.0] WHERE  DOES THE CDC MORATORIUM FACTOR IN

The Centres for Disease Control and Prevention (CDC) released a directive barring landlords from evicting such tenants worldwide. The eviction moratorium was scheduled to expire on December 31st, 2020, but the CDC agreed to prolong it until March 31st, 2021. Tenants who fulfill the order’s conditions are liable for eviction defense. Qualified renters do not immediately gain immunity from the ban; instead, they are required to sign a declaration of eligibility for the ban and provide it to their landlord.

After the CDC’s eviction ban took effect on September 4th, 2020, property owners and tenants have been perplexed by the order’s specifics and the necessary tenant declaration.  Judges also misinterpreted the CDC’s order in some of the worst situations, culminating in the unjust removal of tenants liable for security. Consequently, the CDC and other federal agencies released a guidance document on October 9th, 2020, which addressed several of the ban’s most common queries. Although the manual clarifies certain Order elements, it also poses many concerns and avoids more specifics on how the Order would be applied to specific states and courts.

The CDC’s order requires tenants to sign the declaration under penalty of perjury. Consequently, notarization is not always necessary since the declaration meets the criterion under penalty of perjury.

A further aspect of the CDC order is that tenants do not have to provide their landlords with any documentation or proof when they deliver the signed declaration. However, if court action is put forth, a proof will likely be necessitated, especially if the court has to rule whether the declaration holds. While a tenant does not need to file for unemployment to qualify for protection, the eviction order applies to anyone who expects to earn as an individual no more than USD 99,000 in annual income for the calendar year 2021. If tenants are filing a joint income tax return, the ban applies to those who expect to earn no more than USD198,000 in annual income for 2021. This means that people who are still employed can take advantage of the ban, so long as their income does not exceed these limits.

Another requirement is that protection would have needed tenants to have ‘used best efforts to obtain all available government assistance for rent or housing.’ This means that the tenant is required to have exhausted viable means of financial assistance from government sources to avail of this benefit. However, private sources like non-profits are not required. ‘Available government assistance’ means any governmental rental or housing payment benefits available to the individual or any household member. This best efforts requirement has evolved as a point of contention between landlords and tenants, especially when it provides that tenants must explore benefits available to the individual and any household member.

[2.1] REQUIREMENTS FOR CDC PROTECTION TO TAKE EFFECT

Tenants must assert within their declaration that they are undertaking their best efforts to make prompt payment arrangements that are as similar to the maximum payment as the individual’s circumstances can warrant, taking into consideration other nondiscretionary expenditures. It must be noted that the CDC’s order does not differentiate between written and oral leases (oral leases are valid and enforceable for up to one year in most states). In fact, the order explicitly refers to ‘residents’ as well as tenants.

The concept of ‘best efforts’  assumes that individual circumstances are causing paying rent impossible for the tenant. The tenant must make partial rent payments if their conditions afford it without jeopardizing their ability to provide for other needs, including food, medication, and job transportation. Hardship would mean that eviction would likely render the individual homeless—or force the individual to move into and live in close quarters in a new congregate or shared living setting—because the individual has no other available housing options.

The landlord is also entitled to the entire rent after the moratorium expires. When the eviction moratorium expires (March 31st, 2021), the landlord would be free to evict the tenant and prosecute them for the maximum sum owing, even though they have been paying partial payments.

Landlords who violate the order might also be subject to fines and jail time. The CDC’s order states that landlords, owners of residential properties, or other people with a legal right to pursue an eviction (such as a corporation) ‘shall not evict any covered person from any residential property in any jurisdiction to which this Order applies during the effective period of the Order.’ The order defines an ‘eviction’ as ‘any action by a landlord, owner of a residential property, or another person with a legal right to pursue eviction or a possessory action, to remove or cause the removal of a covered person from a residential property.’ The order leaves the determination of whether a landlord has violated the order to the courts.

The CDC’s order states that landlords can still evict tenants if they [A.] engage in criminal activity while on the premises; [B.] threaten the health and safety of other residents or pose an immediate and significant risk of property damage; [C.] violate any applicable building code, health ordinance, or similar regulation relating to health and safety, and [D.] violate any other contractual obligation besides non-payment of rent or similar housing-related payment, including non-payment or late payment of fees, penalties, or interest.

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Sources

1. The Centres for Disease Control and Prevention moratorium that was originally scheduled to expire on Jan. 31

2. The New York State Legislature passed a bill signed by Governor Andrew Cuomo, which puts into effect two eviction moratoriums. The first puts a stay on any eviction proceedings commenced on or before March 7th, 2020, for 60 days, while the second stays all eviction matters commenced between December 28th, 2020, and January 27th, 2021, for 60 days from filing. The legislation also prevents courts from issuing default judgments authorizing eviction without first holding a hearing.

Also, the bill protects some small landlords from foreclosure and provides relief in the form of tax exemptions to older homeowners or those with disabilities.

3. 28 U.S. Code § 1746 – Unsworn declarations under penalty of perjury 

Wherever, under any law of the United States or any rule, regulation, order, or requirement made under the law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form: 

(1) If executed without the United States: ‘I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date).(Signature)’.

(2) If executed within the United States, its territories, possessions, or commonwealths: ‘I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date).(Signature)’.

4. However, this does not mean that the Declaration works in a blanket manner. The CDC’s agency order states: ‘Each adult listed on the lease, rental agreement, or housing contract should likewise complete and provide a declaration.’ (Federal Register Vol. 85, No. 173, p. 55292.).

5.Indicated by describing the order ‘that tenants, lessees, or residents of residential properties who are covered … may use.’

6. Said rent is inclusive of any late payments or costs the individual agreed to under the contract or leasing agreement

7. Individual landlords who violate the order could be subject to:

  1. a fine of no more than $100,000 if the violation does not result in death (or no more than $250,000 if the violation results in death),
  2. one year in jail, or both.

An organization (such as a corporation, LLC, or real estate investment trust, or REIT) that violates the order could be subject to:

  1. a fine of no more than $200,000 per event if the violation does not result in death, or
  2. $500,000 per event if the violation results in death.

8. Federal Register Vol. 85, No. 173, p. 55294.

9. The CDC specifically notes that tenants who have COVID-19 and take reasonable precautions not to spread the disease do not pose a health or safety risk to other tenants

COVID-19 EMERGENCY EVICTION AND FORECLOSURE PREVENTION ACT OF 2020

New York

By: Akanksha A. Panicker

The New York State Legislature has adopted legislation that extends the moratorium on residential evictions to more than one year from the initial Executive Order 202.8 in March of 2020, through May 1, 2021. Governor Andrew M. Cuomo signed the new COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 in furtherance of the same, wherein residential evictions, foreclosure proceedings, credit discrimination, and negative credit reporting related to the COVID-19 pandemic are curtailed. An additional feature of the Act sees the extension of the Senior Citizens’ Homeowner Exemption and Disabled Homeowner Exemption from 2020x to 2021, creating an all-around effect of protection for tenants and homeowners from the economic hardship incurred as a result of the COVID-19 pandemic.

[1.0] HOW DOES THE LEGISLATION WORK

The legislation also includes a two-month moratorium on pending evictions. This will then permit residential tenants who cannot pay their rent or secure alternative housing and who are suffering financial hardship or a health-related hardship to file a hardship declaration at any time. The hardship declaration would have to be filed under penalty of law with the landlord, court, or enforcement officer. It would prevent the filing, proceedings on, and execution of any eviction warrant until May 1, 2021. 

The bill language includes a hardship declaration form for landlords to use. This would require that a notice of rights and related information and the hardship declaration form (in size 14 point) be included with any rent demand or notice of petition served on a tenant. The hardship declaration must be provided in the tenant’s primary language. If such a translation is unavailable on the Office of Court Administration’s (OCA) website, it is the landlord’s responsibility to obtain a translation.

However, there is no confirmed provision for examining said hardship form before a court or even against the landlord themselves. The Act also attempts to defend certain property owners from credit discrimination through a hardship declaration form.  This is applicable if the owner has fallen behind on mortgage payments, or has received a stay of mortgage or tax foreclosure, or tax lien sale. This protection would apply only to owner-occupied primary residences with fewer than ten rental units.

[1.1] BACKGROUND LEGISLATION

On 28 September, Governor Cuomo declared that the State Tenant Safe Harbour Act would be prolonged and maintained until 1 January 2021 to shelter existing residents against displacement throughout the incumbent state of economic distress during the COVID-19 public health crisis. The Executive Order expands the Tenant Safe Harbour Act’s security to warrants for eviction that occurred before the pandemic outbreak and to others that are awaiting evictions other than non-payment but who endure the very same burden.

On 20th  March, Governor Cuomo initially declared a State moratorium on residential and commercial expulsions to guarantee that no tenants get evicted at the public health emergency height. On 30th  June, the Governor signed the Tenant Safe Harbour Act, which had become active immediately, along with supplementing legislation offering financial support to landlords and tenants. In conjunction, prior Executive Orders have excluded fines or penalties for delayed payment of rents. Renters facing economic difficulties may still use their security deposit as payment and recover the same over time.

When the COVID-19 pandemic began, we asked New Yorkers to protect each other by staying at home. As we fight our way through the marathon this pandemic has become, we need to make sure New Yorkers still have homes to provide that protection,” Governor Cuomo said. This law adds to previous executive orders by protecting the needy and vulnerable who, through no fault of their own, face eviction during a challenging period for New York. The more support we provide for tenants, mortgagors, and seniors, the easier it will be to get back on their feet when the pandemic ends. I want to thank the legislature for passing this important protection for New Yorkers all across the state who need a hand. This is the kind of support that helps us stay New York Tough.”

[2.0] FEATURES OF THE ACT

[2.1] EFFECT ON RESIDENTIAL EVICTIONS

The Act allows for a moratorium on residential evictions until 1 May 2021 for residents who have undergone COVID-related difficulties. Tenants must request a statement of hardship or a record describing the cause of hardship to avoid expulsions. Landlords can evict tenants who generate safety or health hazards for other tenants and tenants who do not make statements of hardship. 

All residential eviction litigation ongoing on 28 December 2020, which include eviction proceedings instituted on or before 7 March 2020, as well as any residential eviction proceedings initiated on or before 27 January 2021, are to be suspended for a duration of sixty days. Notwithstanding the above, an ongoing or freshly instituted action in which the plaintiff has claimed that the tenant is habitually and unjustifiably engaged in conduct that seriously infringes the use and comfort of other tenants or residents, or poses a significant safety threat to others, may continue to be heard in conjunction with the Act. The requirement of adequate affidavits in the freshly commenced proceedings means that no court would likely grant any petition or other notice of commencement in the case of eviction unless those records contain affidavits as provided by section 5 of Part A of the Act.

[2.2] INITIATION AND STATUS OF FORECLOSURE PROCEEDINGS

The Act also places a moratorium on residential foreclosure proceedings until May 1, 2021. Homeowners and small landlords who own 10 or fewer residential dwellings can file hardship declarations with their mortgage lender, another foreclosing party, or a court that would prevent foreclosure.

Any proceeding for foreclosure of a mortgage that concerns residential real property pending on December 28, 2020, and any action proceeding commenced on or before January 27, 2021, is stayed for sixty days. No court shall accept filing commencement papers in an eviction proceeding unless those papers include affidavits as required. 

[2.3] EFFECT ON EXISTING LIEN

The Act prevents local governments from engaging in a tax lien sale or a tax foreclosure until May 1, 2021. Furthermore, at least thirty days before the date on which a  sale of a  tax lien is scheduled to occur, or upon the filing of a petition of foreclosure of a  tax lien,  the enforcing officer or other person or entity conducting such tax lien sale or tax foreclosure is required to notify the owner of the affected property of such owner’s rights. Payments due to the locality are still due.

This act applies to any action to foreclosure on delinquent taxes or sells a tax lien relating to residential real property. This can be held as long as the owner or mortgager is a natural person and owns ten or fewer dwelling units. These units do not have to be in one property or building; however, the owner’s primary residence requesting relief must be included, and the remaining units must be occupied by a tenant or occupied for rent. 

To clarify, real property includes shares in a residential cooperative but cannot comprise vacant and abandoned property. 

[2.4] CREDIT DISCRIMINATION PROVISIONS UNDER THE ACT

Lenders are forbidden from discrimination against the property owner receiving credit unless the owner of the property has been issued a stay of the mortgage foreclosure litigation, a tax foreclosure procedure, or a tax lien on purchases. They are still forbidden from discrimination against the extension of credit if the owner is in arrears and has lodged a statement of hardship with the lender, which will not be negatively reported to any credit reporting agency as per the Act. 

[2.5] BARON ISSUANCE OR ENFORCEMENT OF DEFAULT JUDGMENTS

Before May 1, 2021, no court is authorized to issue a default judgment regarding eviction in a residential eviction matter without first holding a hearing upon the petitioner’s motion. In any residential eviction proceeding in which a warrant of eviction has been issued but has not yet been executed, execution of the warrant will also stay until the court has held a status conference with the parties. 

 If the court has awarded a judgment against a respondent on or before December 28, 2020, based on objectionable behavior, the court is authorized to hold a hearing to determine whether the tenant is continuing to persist in engaging in unreasonable behavior that substantially infringes on the use and enjoyment of other tenants or occupants or causes substantial safety hazard to others. 

For foreclosure proceedings, an action of stay is enacted in any circumstances wherein the judgment of sale has not been issued, and the adequate declarations of hardship are submitted to the foreclosing party or a court. This stay is valid until May 1, 2021. If the sale judgment has been issued but not executed by December 28th, then execution stays until a status conference is conducted with the parties. If the hardship declaration is filed, then the  Action stays until May 1st.  

[2.6] EXEMPTION FOR SENIOR CITIZENS’  AND DISABLED HOMEOWNERS

The Act directs local governments to carry over SCHE and DHE exemptions from the 2020 assessment roll to the 2021 assessment roll at the same levels. This means that the to provide renewal applications for the same must be provided by localities to individuals who qualify for larger exemptions in 2021. This may be enacted via electronic or postal mail. 

However, autonomy is provided to localities to specify procedures wherein local assessors may require renewal applications from recipients they believe may no longer be eligible for the exemption in 2021. In furtherance of COVID-19 safety requirements, recipients are not required to show up in person to file their renewal if a renewal is required under any named circumstances. 

COVID-19 poses a historical hazard to public health. Citizens face displacement or foreclosure attributable to the mandatory disease control measures that have shut businesses and schools and induced widespread unemployment around the state. The contagion has also affected court procedures, the accessibility of counsel, plaintiffs’ ability to compensate for representation, and the ability to move freely to courts of law, settlement sessions, and other such institutions. Stabilizing the housing crisis for residents, landlords, and homeowners are imperative for all New Yorkers’ collective good and would help the state tackle the pandemic, safeguard public safety, and laid the groundwork for reconstruction. Therefore, the purpose of these laws is to prevent as many evictions and foreclosures as possible for people who have endured financial distress throughout COVID-19 or who are unable to travel due to the enhanced danger of serious illness or death from COVID-19. 

The law, which had been rapidly signed by Gov. Andrew Cuomo, has been proclaimed as “the strongest [legislation] in the nation to block eviction proceedings.” While, in concept, the goal is to shield tenants from eviction and owners from foreclosure and tax-related transactions, one will also recognize that the unintentional result of the extension of these provisions may have a disparate negative impact on small residential landlords. It should be remembered that the act does not exempt the rental property itself from eviction or tax lien sales if it is not the primary home of the landlord.

Despite the legislation, rent, taxes, and mortgage payments are not canceled despite the legislation, rent, taxes, and mortgage payments. This can render the possibility that the backlog of accrued liabilities can be insurmountable when payable, perhaps leading to bankruptcy. Furthermore, the small landlord remains vulnerable, especially because they are susceptible to enforcement against the real property. 

For information on serving legal papers, click here or call (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out Exceptions To The Eviction Moratorium

Sources

1. Governor Cuomo COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (L.2020, c. 381; Act)

2. Governor Cuomo Announces Moratorium on COVID-Related Residential Evictions Will Be Extended Until January 1, 2021, https://www.governor.ny.gov/news/governor-cuomo-announces-moratorium-covid-related-residential-evictions-will-be-extended-until (last visited Jan 8, 2021) 

3. Governor Cuomo Signs the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 Governor Andrew M. Cuomo, https://www.governor.ny.gov/news/governor-cuomo-signs-covid-19-emergency-eviction-and-foreclosure-prevention-act-2020 (last visited Jan 8, 2021)

4. Answering Petitions New York City Civil Court, (http://www.nycourts.gov/courts/nyc/civil/corona/evictions.shtml (last visited Jan 9, 2021)

5. Act, Part A, §2

6. Act, Part A, §§9, 9[5]

7. Act, Part B, Subpart A §§1, 3

8. This is also relevant to authorize the enforcement of eviction under a default judgment

9. Act, Part A, §7

10. As of December 28, 2020

11. Act, Part A, §8[a][i]

12. Act, Part A, §9[2]

13. Act, Part B, Subpart A §§2, 7

14. Act, Part B, Subpart A §8 

15. Senior Citizens’ Homeowners Exemption

16. Disabled Homeowner’s Exemption

 

UNDERSTANDING THE CHANGES TO NEW YORK LANDLORD TENANTS LAWS

EVICTION LAWS

By: Akanksha A. Panicker

The “Housing Stability and Tenant Protection Act” has seen significant changes be enacted into landlord-tenant rights and obligations in New York. Modifications have been made to the substantial bulk of the NY legal matrices. The Act has been controversial and can seem to have a chilling effect on pre-existing real estate and landlord-tenant laws.

[1.0] CHANGE IN STATUTE FOR NOTIFICATION

Provide Rent Receipts and Late Payment Notices.

From July 2019, the onus of requesting a residential tenancy receipt was shifted from the tenants to the landlords themselves. Rather than repeatedly request receipts, it becomes necessary for a landlord to provide receipts for the lease term after an initial receipt. This might be done immediately upon personal delivery or within fifteen days of payment in case of indirect or online payment.  Landlords further expected to maintain records of cash receipts for at least three years, available upon tenant’s request, or if rent is paid in any form other than a personal check.

Additionally, notice to tenants late in paying rent by five days or more must be sent in writing. Service by mail is required through certified mail herein, with omission being considered affirmative defense in a non-payment proceeding. However, summary proceedings like non-payment or holdover under the Act can have a different connotation.

For cooperative housing, the Act creates a requirement of 120 days’ written notice served on the tenant if there is a 5% increase when a renewal is offered. This is not considered applicable with a maintenance increase of more than 5% but has not been specifically laid down under the provisions and is ambiguous regarding applying the same. 

Notices of Eviction

Upon the court ruling in favor of the landlord in a summary proceeding, the notice of the same must be posted by a Marshal on a business day on the property. This notice must be executed fourteen days before warrant execution, extending the same from three days. Issuance of warrant no longer cancels the landlord-tenant relationship.

However, the Act also judges the power of deferral in an eviction based on ‘extreme hardship.’ Determination of extreme hardship is on a case-wise basis but often includes the occupants’ health, children’s education requirement, etc. A stay period of one year could also be granted herein. However, any such relief granted must be balances with the hardships that a landlord conversely will face during such interim relief. Consequently, any order to stay would require that the tenants make efforts to secure other housing. If an eviction is for a lease violation, the court must grant 30 days for the tenant to resolve the violation.  For evictions, the process must be served between 10-17 days before the day of appearance, allowing for around fourteen (14) days of adjournment for the factual cause.

Application fees

Landlords are required under the Act to charge application fees based on the cost of a credit or background check. A capped amount of  USD20 may also function as a yardstick depending on which condition is less. Furthermore, a copy of the results and receipt of the inquiry must be provided to collect the fee. The charge may be waived if the tenants have copies of a background check that they have run within the last 30 days before application. 

This also has ramifications for late fees being charged. Residential landlords are now required to demand and collect a single fee for late payments with a five-day grace period after the monthly rent is payable. While previously, there was no restriction per se for late fees and lease-breach penalties, the charge cannot exceed USD 50 under any circumstances. No other fees or requirements are permitted as a condition of obtaining a lease.

Landlord’s duty to communicate and mitigate

A completely new provision required the landlord to assist a tenant who has to vacate the premises prematurely without the lease itself expiring. The Act essentially modifies the provision for a residential tenant wishing to vacate before lease expiry to include the landlord’s requirement to make reasonable efforts to re-let the premises at the rate agreed upon with the tenant or the unit’s fair market value, whichever is less. A lease with a new tenant will extinguish the former occupant’s liability for any additional rent payments. 

This provision is purely for residential tenants and cannot be seen as applicable to commercial leases or tenancies. Furthermore, it is necessary under these provisions that the landlord communicates before lease expiry. Stricter notice rules have been set up, wherein tenants are obligated to be notified whether the lease is to be renewed or even if the rent is to be increased by more than five percent. 

The timeframe for communication is to graduate. At least thirty (30) days’ notice is mandated for any agreement that falls short of a year. For a year-long agreement, the notice period climbs up to sixty (60) days. Agreements for two years or more require ninety (90) days’ notice, barring which the tenancy continues as per the renegotiated terms. It must be remembered herein that notification to terminate monthly tenancy outside the city of New York is based on the tenant’s notification to the landlord at least one month before the expiration of the term provided. No notification shall be necessary to terminate a tenancy for a definite term.

Security Deposit

The cap for residential security deposits was enacted wherein the deposit cannot exceed a month’s rent. This effectively marks an end for multiple months’ rent being set aside in advance. Under the new provisions, the deposit money must be returned within fourteen days of termination of tenancy accompanied by an itemized statement denoting the basis of deductions. This might include necessary repairs or modifications.

Move-in and move-out inspection procedures have also been enacted. This means that before the unit’s possession, a landlord is obligated to provide the prospective occupant with an opportunity to tour the apartment. Upon conclusion, the landlord and tenant may implement an agreement in writing to delineate any specific defects or damages to the premises, which serve as a reference for the request of any repair costs that the landlord may deduct from the deposit upon vacating the property. Furthermore, another inspection is afforded to the tenant before moving out to accompany the landlord on an inspection to identify the property’s damages, consisting of a deduction to the deposit. This is done to allow the tenant to rectify the issues before moving out. 

Severe punitive measures have been included; wherein non-compliance can cause the landlord to be liable for the tenant’s actual damages. Additionally, a willful violation can see punitive damages up to twice the amount of the deposit. The landlord can withhold deposits for non-payment of rent, damages beyond normal wear and tear, non-payment of utilities (included in the rent), and the cost of moving/storing a tenant’s belongings after moving out.

There have been issues with this provision, however. Since the punitive measures are not limited to mere failure to retain the deposit, this holds equal weightage to lesser infractions, like failure to schedule the inspection within the window. Furthermore, the abolition of pre-paid rent could also mean the attraction of liability for individuals who have to pay rent upfront, like foreign residents letting the unit. Continuing the aforementioned practice of charging prepaid rent for an individual, not a New York resident, could attract misplaced liability. 

[2.0] CHANGES IN COURT PROCESSES

Summary Proceedings

The adjournment period for the proceedings has been extended to sixty (60) days rather than the previous thirty days from the first appearance. Postponement requests or unrepresented tenant adjournment to seek counsel will not be considered a part of this period. After the lapse, the landlord can file a motion to compel the tenant to pay ‘use and occupancy’ from the date that the motion is granted.  However, this can be contested with ‘acceptable defenses’ like the landlord not being a proper party or actual or constructive eviction. A minimum of fourteen days adjournment can be provided unless a shorter period is mutually assented to. 

If the full amount of rent is paid before hearing on the petition, the landlord must accept payment, and the proceeding must be dismissed. It must be remembered herein that rent deposit orders are now discretionary and that hearing may be done ‘as soon as practicable.’ 

Attorneys’ Fees

The recoverable costs of legal fees have been slashed in the new proceedings. In a holdover proceeding herein, only rent may be collected. Since the act prohibits collecting extraneous fees, residential rent is also construed narrowly to include the amount chargeable for ‘use and occupation’ of the space. This is a surprising turn, but there is no precluding of a separate lawsuit being opened in tandem to recover legal costs. This also holds in a non-payment or holdover proceeding where the tenant defaults, as the landlord is not entitled to recover attorney fees. The same principle is not held for tenants in the Act, wherein courts are mandated to award these reasonable fees and costs. This is especially true during an overcharge case.  

[3.0] CHANGES IN RENT REGULATION

Rent-control increases and Overcharge  

The Rent Guidelines Board is in charge of determining the adjustment average of the preceding five year period. However, the cap for said adjustment is held at seven and a half percent and is also not held liable for heating fuel costs that might have been accumulated on the monthly rent. 

A tenant in a rent-overcharge proceeding has seen an expansion of recovery period from four years to six years of overcharge payments and can seek up to three times the damages for the entire amount if the conduct is determined to be ‘wilful.’ Surprisingly, the conduct might be found ‘wilful’ even if the excess is refunded or adjusted.  Records of payments or similar documents dating past four years may be required to be produced for as far as is considered ‘reasonably necessary’ regardless of an indicia of fraud. In this regard, it is conversely improper to request tenant history or landlord letters or any form of court records as a basis for the applicant’s rejection. There is a six-year limitation period on the filing of overcharge claims, after which the treble-damages period expires. 

Deregulation

Most deregulation provisions have been repealed. The provisions that held that [A.] lawful rent about a statutory threshold for a unit that a rent-stabilized tenant vacated could see the next tenant charged at the market rate [B.] opportunity to avail a vacancy bonus to see rent increase by 20 percent upon regulated tenant move out and [C.] tenants with household income above USD 200,000 for two years are subject to deregulation have been stricken. Income-based discrimination cannot be enacted by landlords, with rent regulation being held forth barring specific circumstances.  In fact, the rent-control and rent-stabilization sunset provisions have been eliminated, and luxury deregulation has been abolished.

Furthermore, preferential rent provisions have been changed insofar as increases are subject to the Rent Guidelines Board’s approval and cannot be changed during the entirety of the tenancy. This does not hold for tenancies that succeed the incumbent once, whereinafter the landlord can then re-let the apartment at a maximum rate.

The HSTPA essentially slashes past provisions of law. Proponents cite the value of the law in terms of strengthening tenant protections. However, landlords have been vocal against the HSTPA, citing that the stringent provisions can very easily deny property owners of incentives to improve buildings. The detailed documentation procedures can prevent a large portion of marginalized groups from obtaining housing due to reluctant landlords. 

For information on serving eviction papers, click here or call (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!

Sources

 1.R.P.L. § 235-e(b); R.P.L. § 235-e(c)]

2. R.P.L. § 235-e(d); R.P.A.P.L. § 702

3. RPL Section 226-C: 

4. R.P.A.P.L § 749(2)(a); R.P.A.P.L. § 711(2)]

5. Real Prop. Law § 238-a(1)(b), Real Prop. Law § 238(a)(3).]

6. Real Prop. Law §238-a(2)

7. Real Prop. Law § 227-e

8. Real Prop. Law § 226-c

9. Real Prop. Law § 232-b

10. G.O.L § 7-108 (1-a)(a), G.O.L § 7-108 (1-a)(e)

11. G.O.L § 7-108 (1-a)(e)

12. G.O.L § 7-108 (1-a)(c)

13. R.P.L. § 745(2)(a)]

14. R.P.A.P.L § 702; R.P.L § 234

15. N.Y.C. Admin. Code 26-516(a)(4)

16. N.Y.C. Admin. Code § 26-405(a)(5)

17. N.Y.C. Admin. Code § 26-516(a); N.Y.C. Admin. Code § 26-516(g)

18. RPL Section 227-f:

19. E.T.P.A. § 10(a-2); N.Y.C. Admin. Code § 26-511(c)(14)

Eviction Of A Tenant: The Coronavirus Quandary

Economy Visual

By: Akanksha A. Panicker

The onslaught of the coronavirus on the New York economy has been devastating on everyone. Nonessential businesses have closed in most states, and new unemployment application numbers are soaring. These economic situations may make it difficult for tenants to pay rent, but it also places a heavy burden on the landlords who rely on rental payments as a crucial source of income. In this article, the effect of the pandemic on the eviction of tenants will be outlined and the options at one’s disposal will be understood.

[1.0] The Background and The Eviction Procedure 

Ordinarily, a landlord can evict a tenant for a variety of reasons, provided that the termination of the tenancy occurs before the eviction. However, cause is an essential requirement for a landlord who wants an early termination for a tenancy or who wants a tenant to move out before the rental term has expired.. 

The tenant can be evicted early for a couple of different reasons, including not paying rent or violating the lease or rental agreement  The termination happens by way of written notice given to the tenant by the landlord. Failure to comply leads to the landlord filing an eviction lawsuit with a court. 

New York is a tenant-friendly state and requires the culmination of a tenancy to comply with highly specific regulations that are aimed at particular situations that arise. Depending upon the circumstances, different types of notices and procedures may be provided.  Additionally, eviction regulations in New York depend upon whether the rental property is located within the boundaries of New York City or whether the property is rent-regulated as well. These factors are necessary to consider before entering into a tenant-landlord relationship. 

[2.0] So, What Exactly Happened? 

The timeline of the changing laws implemented in the wake of COVID-19 can be tracked from March 16th, where the NY Chief Administrative Judge Lawrence Marks announced in a memo that eviction proceedings and pending orders in housing court were to be suspended state-wide.  Governor Andrew Cuomo later enacted a moratorium on eviction services that was initially supposed to last up to June 2020 but was then extended to August 20th, 2020.  This extension came with a tapering of the categories of individuals who qualified under the order while also rescinding of a part of the mandate. 

Additionally, the federal CARES Act was signed into law March 27, 2020. The Act provided enhanced Unemployment Insurance (UI) benefits and Pandemic Unemployment Assistance (PUA) for New

Yorkers. This formed the overarching safety net that powers the Tenant Safe Harbour act, sponsored by Manhattan Sen. Brad Hoylman and Bronx Assembly member, Jeffrey Dinowitz. 

What the Safe Harbour Act is responsible for is to ensure that tenants cannot be evicted for neglecting to provide rent payments during the COVID-19 crisis. Initiated on March 7th, the Safe Harbour Act is held fast until all safety-restrictions are lifted in the tenant county as long as the tenant can demonstrate they suffered from financial hardship. 

[2.2] How do the new rules apply to me?

The unemployment assistance offered to tenants is increased under the CARE Act. This includes but is not limited to the allotted cash payment as offered by the government. Temporary rent assistance or even one-time rent assistance may also be provided under the local governments. As of right now, the 120-day eviction moratorium and cessation of late fees under the CARE act provides the main relief for concerned tenants. 

On a fundamental level, the Tenant Safe Harbour Act prohibits the courts from [A.] issuing a warrant of eviction or [B.] issuing a judgment of possession against a residential tenant or a lawful occupant. However, a condition that has to be fulfilled remains the sufferance of a financial hardship by this tenant for the COVID-19 period..

Eviction thus is not an option during the COVID-19 period. However, landlords may still seek and be awarded money judgements for owed [and due] rent. Summary proceedings may be continued to seek these reparations so landlords can recuperate costs as per article 7 of the RPA law. While the Safe Harbour Act itself limits a significant number of tenants who may be considered eligible, landlords thus have a certain modicum of protection, even if it may not be absolutely effective. 

Additionally, the modification to the General Obligations Law now provides that the money deposited as security or advanced on contract or license agreement is to be used to pay off the rent owed to the landlord as long as they both enter into a written agreement denoting consent for the same.  Alongside, relief is to be provide to tenants or licensees in financial hardship upon request. 

The corollary protection afforded to the landlords is the replenishment of the security deposit. This replenishment is to be done at a rate that is one-twelfths of the amount used as rent per month and the payment is to be done 90 days from the date of using the deposit. 

 [3.0]What This Means

One of the hardest group hit economically are the landlords who own individual or small units. Consequently, provision of financial assistance to tenants is important, as the economic burden of the pandemic is felt across the divide. A significant portion of effort needs to be directed toward ensuring tenants can pay their rent in order to make certain that mortgage costs and traditional maintenance costs can be borne by the landlords.

 Additionally, the CARE Act moratorium neither applies to every residential landlord nor decrees that tenants need not pay their rent. The CARES Act merely accrues the rent to be paid during the pandemic, and the stoppered rent once accumulated cannot be enough to prevent a full blown eviction crisis. 

Maintaining affordable housing seems almost impossible in the wake of unemployment and layoffs while also requiring landlords to drawn on their own savings. The eviction moratoriums imposed by their local governments will have an issue in recouping the losses upon restoration to normalcy. 

The eviction moratorium provided blanket protection until the changes enacted by Cuomo provided some relief to the individual landlord. However, holdover cases have not been addressed within this directive. Considering that a holdover case is brought to evict a tenant or a person in the apartment who is not a tenant for reasons other than simple non-payment of rent, often for endangering tenants or fostering more individuals than in the lease agreement, the lack of address in the extension is worrying. Furthermore, the impact of the changes may also be felt on individuals who struggle with documenting their income adequately. 

Clearly, if New York is to bounce back from this pandemic without spiralling into uncertainty and further housing misunderstanding, the issues in the current safety net need to be addressed. The balance struck between tenant and landlord at this point is fragile and needs all the protection it can get on both sides. 

For more information on evictions or serving eviction papers visit www.undisputedlegal.com or call (800) 774-6922.  Representative are ready to assist you Monday-Friday 8am-8pm.

 Sources

1. NY Governor Executive Order 202.48 (2020)

2. Coronavirus Aid, Relief, and Economic Security Act Pub.L. 116–136

3. Tenant Safe Harbor Act (S. 8192B (Hoylman)/A. 10290B (Dinowitz))

4. NY Real Prop Actions L § 711 (2015)

5. NY GEN OBLIG § 7-103; NY GEN OBLIG § 7-107; NY GEN OBLIG § 7-108. 

6. The detailed provisions of the executive order No. 202.28 was released by Andrew Cuomo on May 7th, 2020

How to Evict A Roomate In New York

Roomates

A roommate holdover case is brought to make a roommate leave the apartment or house that you share. You cannot lock your roommate out of the home you share without a court order.

If you are a renter, to start a roommate holdover case, your roommate must rent from you, not the landlord. If your roommate is named on the lease and also rents from the landlord or owner, then you can’t start a case in Housing Court. Your roommate is a co-tenant and has the same right to stay in the home as you do. If you fear for your safety based on your roommate’s behavior, you should call the police.

To start a roommate case, your roommate must be someone who is supposed to pay you to rent to live with you. If your roommate is someone you let live in your home without paying rent, then you can start a “licensee” holdover case, not a roommate holdover.

The Notice of Termination
Before you can start a court case to make your roommate leave, you may need to serve your roommate a Notice of Termination.

Starting the Case
To start a case to make your roommate move out of the home or apartment you share, you need to fill out a Notice of Petition and a Petition. Use the free DIY (Do-It-Yourself) roommate holdover computer program provided by the NYS Courts Access to Justice Program to make your court papers. The DIY program will help you make your court forms and give you instructions on what to do next.

Once you have used the DIY program, bring your notarized original papers (including the Notice of Termination), your DIY User Survey (if applicable), and your copies to the cashier’s window in the Landlord-Tenant Clerk’s office to buy an index number. Payment may be made by cash, certified check, or money order. Make the money order or certified check payable to the “Clerk of the Civil Court.” Go to Locations to find out where to go in your county. Go to Court Fees to find out the cost of filing the Notice of Petition.

You must choose the court date on the Notice of Petition. The court date must be between 10 and 17 days after delivery (“service”) of the court papers is “completed.” When service is completed depends on how the papers are delivered.

A Landlord/Tenant clerk will give you the courtroom number and the assigned time for you to fill out the papers. The clerk will give you back the Notice of Petition with the index number stamped onto it and the date of the hearing. The Clerk will keep the Petition.

When the Clerk returns the Notice of Petition to you, arrange your copies into three sets for your roommate (and your roommate’s roommate, if applicable). The Notice of Petition should be on top, then the Petition with the Notice of Termination and Affidavit of Service of the Notice of Termination for your roommate (and your roommate’s roommate, if applicable). Fill in the court date, the courtroom Part, the courtroom number, and the time listed on your original Notice of Petition on all of the Notice of Petition copies. Fill in the Index No. (Number) on the Notice of Petition and Petition copies. In the signature space, put /S/ and copy the name of the Clerk of the Court. Keep the original Notice of Petition separate from the copies. Now you are ready to have your server deliver the papers to your roommate.

You must make sure your roommate receives a copy of the Notice of Petition and the Petition in the manner required by law. The Petition and Notice of Petition copies must be served not less than five calendar days and not more than twelve calendar days from the court date.

After service of the Notice of Petition and Petition and the mailings (if necessary) are done, you must bring back the original Notice of Petition and the original Affidavit of service to the Court. Bring stamps for postcards with you. When you return the papers to the court, ask the Clerk for a postcard. You must fill it out and put a stamp on it so the Clerk can mail the postcard to your roommate (and roommate’s roommate, if applicable). Your roommate will have to answer the Petition in Court.

Going to Court
You must go to the courtroom on the court date. Go to Directions if you do not know how to get to the courthouse. Get there early because you will need to go through a metal detector before going into the courthouse. Bring all the evidence you have to prove your case. The first courtroom you go to is called a “Resolution Part.”

For information on serving eviction papers, contact our eviction service (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out our Frequently Asked Questions About Process Servers.

HOW TO EVICT IN NEW YORK CITY – NON-PAYMENT PROCEEDINGS

Eviction Notice

The Housing Court hears and decides disputes between residential landlords and tenants in New York City. These cases include summary nonpayment and holdover proceedings, proceedings to enforce housing maintenance standards, and harassment cases. 

The Housing Court is separated into Parts. A Housing Judge presides in each Part. There is a special part, called the HP Part, that hears only cases brought by tenants or by New York City to enforce laws requiring repairs in residential buildings. All other cases are first assigned to a Resolution Part. Visit the Resolution Part page to learn more about what happens in a Resolution Part. If the case cannot be resolved between the parties and if it is ready for a trial, it is assigned to a Trial Part. The judge in the Trial Part will listen to all the evidence and decide the case. 

NON-PAYMENT PROCEEDINGS

The landlord brings a nonpayment case to collect unpaid rent. A tenant may be evicted for non-payment of rent.

The Demand for Rent

Before the case can be started, the landlord or someone working for the landlord must demand the overdue rent from the tenant and warn the tenant that the tenant can be evicted if the rent is not paid. The demand must be in writing and must be delivered to the tenant at least 14 days before the court case is started.

If you are a landlord with a one or two-family house, or a building with fewer than five apartments, or own a coop or condo, the New York State Courts Access to Justice Program has a free DIY (Do-It-Yourself) computer program to help you make a written Rent Demand. Or you can contact an eviction attorney, eviction service or buy a Rent Demand form at a legal stationery store.

Starting the Case

If the tenant does not pay the rent after the demand is made, the landlord may file a nonpayment petition (sometimes called a “dispossess”) against the tenant in Housing Court. Landlords who do not have a lawyer, who own a one or two-family house, or a building with fewer than five apartments, or own a coop or condo, can use the New York State Courts Access to Justice Program’s free and easy DIY (Do-It-Yourself) Form program to make a nonpayment petition that is ready to print, serve and file to start a case. This program is only for un-regulated housing. There is a fee to start the case.

Or, the landlord may use forms of his or her own or may buy the following forms at an eviction service or legal stationery store: 

1. Petition 

2. Notice of Petition

3. Service copies 

4. Postcard

The nonpayment petition must contain: 

1. the interest of the petitioner in the premises; 

2. the interest of the respondent in the premises and his/her relationship with the petitioner;

3. a description of the premises;

4. the facts upon which the proceeding is based;

5. the relief sought.

The Rules of the Court also require a petitioner to plead whether the building is a multiple dwelling, and if so, that there is a currently effective registration statement on file with the office of code enforcement, the multiple dwelling registration numbers along with the name and address of the managing agent.

The landlord must fill out the forms (see Requirements for Nonpayment Petitions below), make photocopies, and then bring or hire a legal service  to file the forms to the Landlord-Tenant Clerk’s Office to the cashier’s window to buy an index number. Payment may be made by cash, certified check, or money order. Make the money order or certified check payable to the “Clerk of the Civil Court.” 

The clerk will stamp the index number on the original forms and will keep the Petition. The clerk will return the Notice of Petition with the index number stamped on the front. The landlord must make sure the tenant receives a copy of the Notice of Petition and the Petition in the manner required by law. 

After serving the papers, the landlord must bring back the original Notice of Petition with the notarized affidavit of service on the backfilled out by process server. The landlord must also bring in the stamped postcard so that the court can mail it to the tenant. After the tenant answers, the court will mail a postcard to the landlord stating the court hearing’s date, time, and place.

If the tenant does not answer and the rent is still not paid, the landlord can apply for a default judgment based on the tenant’s failure to answer.

Requirements for a Nonpayment Petition

1. The petition must be brought by a person who has a right to recover the property. This may be a landlord, a primary tenant, a roommate who holds a lease in his or her name, an estate, etc.

2. The respondent must be identified. This is done by providing the name of the respondent, although there might be unidentified under-tenants who are styled as John and/or Jane Does.

3. The nature of the agreement by which the respondent entered into the tenancy must be provided. This could be a lease or a month-to-month tenancy and must have some specificity as to when it began.

4. The amount of rent to be collected as well as the day on which the rent is to be paid.

5. The location of the premises. The petition must be brought to the county where the building is located.

6. There must be a specific allegation as to the rent due. This normally requires that the amounts due for each rental period be specified. If any other money is due, say for taxes as “additional rent,” or for late or legal fees, these must be itemized separately and totaled.

7. There must be an allegation as to the rent demand, either that it was oral or in writing. If in writing, the demand and an affidavit of service may be submitted to the court.

8. There must be an allegation that the respondent continues to occupy the premises. If the respondent has left the premises, a nonpayment proceeding may not be maintained.

9. There must be a statement that either the premises are not subject to rent regulation and the reason; or that the premises are subject to rent regulation and the kind of rent regulation that applies.

10. The petition must specify whether the premises is a multiple dwelling or not. If it is, the managing agent’s name and address and the multiple dwelling registration must be supplied. See Finding the Multiple Dwelling Registration Information.

11. There must be a clause specifying the relief requested. This normally must state whether the premises are used by the respondent as a residence or not, the amount of money for which judgment is requested, and the interest date, if interest is sought, as well as a request that the judgment is granted, and a warrant of eviction be issued.

12. The petition must be signed by the petitioner.

13. The petition must be verified. The verification may be made by different persons on behalf of the petitioner or by the petitioner him or herself if a natural person. The verification must be affirmed or sworn to and notarized.

Going to Court

If you received a postcard from the court with a court date, you must appear in the courtroom on that date. You can get directions if you do not know how to get to the courthouse. Get there early since you will need to go through a metal detector before entering the courthouse. You should bring all your evidence in support of your claim or defense. The first courtroom you go to is called a “Resolution Part.” To learn more about what happens there, refer to the Resolution Part. 

Answering a Case

If you have received a petition from the civil court, you must appear and answer within the time period provided for in the notice of petition. If you have received a postcard from the court indicating that papers have been filed asking the court to evict you from your residence, you must also answer. You should bring a copy of the court papers you received or the postcard from the court when you come to answer.

If you are an individual, you may answer either orally or in writing. Any individual named as a respondent or any person in possession or claiming possession of the premises may submit an answer. Your answer should include any legal or equitable defense or explanation that you might have. 

You may also make a counterclaim in response to a petition at that time.

If you do not answer and appear, the party suing you may be able to enter a possessory judgment and/or a money judgment against you. The petitioner may be able to evict you, as well as garnish your wages or levy on your bank account. If you received a notice from a marshal or a sheriff you might be able to vacate your default and/or stop the eviction. You can learn more about this and other housing court procedures by reading our Legal and Procedural Information sections.

The time to answer the petition and the procedures for answering a nonpayment petition and a holdover petition differ and are set forth below. You should bring a copy of the court papers you received or the postcard from the court when you come to answer. The clerk will ask you to show some form of identification.

Answering a Nonpayment Petition

If you are served with a nonpayment petition, you must answer within 10 days after you have received the notice of petition. To find out where to answer in your county, refer to Locations. The clerk will set a date for trial between 3 days and 8 days after your answer. You may answer orally or in writing.

To answer orally, you must come to Court and speak to a clerk at the counter who will check off a Landlord/Tenant Answer In Person form based upon what you tell him or her. You should tell the clerk if you are in the military or a dependent of someone in the military. The Answer in Person form contains a list of possible defenses that may or may not apply to you. After the clerk completes this form, you will get a duplicate copy of it. Check to make sure that your answer was correctly recorded by the clerk before you leave the counter. If the answer is not correct, tell the clerk. Bring your copy of this form and all court papers to court on the hearing date.

View information on Answering a Notice of Petition And Petition (CIV-LT-92). To read more about the defenses listed on the Answer in Person form, go to the Housing Fact Sheets. If you live in a rent-stabilized or NYCHA apartment, you can use the interactive Nonpayment Answer Program to learn about your defenses and help you prepare to answer a nonpayment petition in person. You can also watch a community seminar about Defenses to a Nonpayment Proceeding.

You may answer in writing by using a free Civil Court form or your own form. You may come to the clerk’s office and request a Landlord/Tenant Answer In Writing And Verification form from the clerk at the counter. You will be given two duplicate copies of this form. You may also download the form now. You can download the Answer in Writing Instructions.

The procedure for a written answer is more complicated, and if not done properly, your answer may be rejected. You must fill out the written answer form and then serve by process server on the other side. If you do not prepare your written answer in court, the procedure is slightly different. Go to Serving Your Written Answer for instructions on how to serve the answer correctly. Bring your copy of the answer and all court papers to court on the hearing date.

Answering a Holdover Petition

If you are served with a holdover petition, generally, you must answer orally or in writing in the courtroom on the date of the hearing. However, if the petitioner serves the notice of petition at least 8 days prior to the return date, the notice of petition may ask you to answer at least 3 days before the hearing date. To find out where to answer in your county, go to Locations.

If you answer orally by coming to the court and speaking to a clerk at the counter, the clerk will indorse your answer on the court file. You should tell the clerk if you are in the military or a dependent of someone in the military. You may answer in writing by either downloading and completing the Landlord/Tenant Answer in Writing and Verification Form or coming to court and asking the clerk for a copy. There are also instructions for how to complete the answer. You may also submit your own written answer. The procedure for a written answer is more complicated, and if not done properly, your answer may be rejected. Continue reading below for instructions on how to serve the answer correctly. Bring your copy of the answer and all court papers to court on the hearing date.

Serving Your Written Answer

After you have completed a written answer, you must serve the petitioner by following the instructions below.

1. Make two copies of the completed written answer.

2. Have process server or someone over the age of 18, who is not a party in this action, mail a copy of the written answer by regular mail to the attorney for the petitioner or to the petitioner directly only if there is no attorney.

3. You may also have a process server or someone over the age of 18, who is not a party in the action, personally deliver the written answer to the petitioner’s attorney or the petitioner directly only if there is no attorney. 

4. Next, you need an affidavit swearing that the written answer was served. Download the free Affidavit of Service civil court form.

5. Prepare an Affidavit of Service for the service on the petitioner and have the person who served the written answer sign the Affidavit of Service in front of a notary.

6. Attach the original Affidavit of Service to the originally written answer. 

7. For Nonpayment cases, return the written answer and affidavit of service to the Court within five days of receiving the notice of petition.

8. For Holdover cases, if the notice of petition requires you to answer prior to the hearing date, you must return the original of the answer and affidavit of service in the court at least three days before the hearing date. Otherwise, you may bring the written answer to court on the hearing date.

9. Keep a copy for your records and bring all your papers with you when you come to court for the hearing date.

Jury Demand

You can also request that your case be tried before a jury. In a jury trial, the jury, not the judge, makes the decision, and a judgment is entered based on the verdict reached by the jury.

If you wish to make a jury demand, you should request a jury trial when you answer the petition. You can tell the clerk and pay the jury demand fee. Go to Court Fees to learn the amount of the fee. If you cannot afford to pay the fee, you may be entitled to have the fee waived. Refer to Poor Person’s Relief to learn more.

Keep in mind that the Judge may later decide that you are not entitled to a jury trial because you gave up your right in your lease. Most leases include an agreement to give up a right to a jury trial.

You can also request a jury demand at a later time. However, the judge may deny your request if you wait too long. For more information on filing a late jury demand, go to Timeliness of Jury Demands to read the Civil Court Directive on the subject.

Inspection Request

If you have a repair problem in your apartment or building, you should ask for an inspection from the clerk or the Judge the first time you are in court or as soon after that as possible. An inspector from the Department of Housing Preservation and Development will come to your home and make a report to the court. The report will help you prove that there are bad conditions that need repair.

If you request an inspection, you may get a date for the inspection and a date to return to court. You will be asked to make a list of the repairs needed. Make sure to include every problem in each room of your apartment and in the public areas of the building. To view a copy of the Tenant’s Request for Inspection, make an Inspection Request. If you fail to include a problem or area on the inspection request form, the inspector may refuse to look at it.

On the day of the inspection, it is important that someone be home to let the inspector in. Be sure to show the inspector all of the problems you listed.

Traverse Hearing

If you did not receive a copy of the notice of petition and petition, or you believe that the papers were not served properly, that is a defense to the case and should be included in your answer. Refer to Service of the Notice of Petition and Petition to learn more about the proper way to deliver legal papers. If you raise this defense, the judge may decide to set a date for a hearing, called a traverse hearing, to decide whether the service of the court papers was proper.

At the traverse hearing, the landlord’s process server may be asked to tell under oath how he or she served you with the court papers. You will have the right to ask the process server questions, to testify yourself, and to call witnesses to explain that the papers were not delivered properly.

If the judge finds that the service of the papers was not served properly, the case will be dismissed without prejudice. The landlord may start the case over again by giving you a new set of papers. If you receive another set of papers, you must come to court and answer them again.

To Proceed as a Poor Person

If you do not have enough money to pay the court costs and fees of the proceeding, you may ask the court to permit you to proceed without having to pay the court costs. These costs include the charges for starting an HP proceeding, filing a petition, filing a jury demand, and appealing a court ruling.

Your application for “poor person’s relief” must be supported by an affidavit which must:

1) set forth the amount and sources of your income, and list your property with its value;

2) state that you are unable to pay the costs, fees, and expenses necessary to prosecute or defend the action or to proceed or to maintain or respond to the appeal;

3) indicate the nature of the action or proceeding; 

4) provide sufficient facts so that the merit of your claims can be determined;

5) indicate whether any other person would benefit from any award in your case, and if so, whether that person is unable to pay such costs, fees, and expenses.

You may obtain the affidavit from the court, or you may download the civil court form now by clicking on Poor Person’s Relief.

If the judge approves your application, the judge will sign an ordered listing which fees and costs you do not have to pay. This order may also contain directions that if you recover any money in your lawsuit, the money shall be paid to the Clerk of the Court, which may then recover the fees and costs which you previously could not afford to pay.

Once your application has been approved, the judge may order that a copy of your application and the order granting it be mailed to the New York City Corporation Counsel’s office at 100 Church Street, New York, NY 10007.

Service of the Notice of Petition and Petition to Start a Nonpayment or Holdover Proceeding

The procedure for service of the papers to start a residential landlord-tenant proceeding is set forth below. For further information on service, you may refer to the Real Property Actions and Proceedings Law section 735.

Who May Serve

1. You may NOT serve the papers yourself.

2. Anyone over the age of 18 years and NOT A PARTY of the action may serve the papers.

3. If you wish, you may hire a Process Server to serve the papers.

When to Serve

Papers may not be served on Sunday. Papers may be served during three time periods:

Non-working hours: 6:00 a.m. – 7:59 a.m.

Working hours: 8:00 a.m. – 6:00 p.m.

Non-working hours: 6:01 p.m. – 10:30 p.m.

How to Serve

A copy of the papers shall be served on the respondent through one of the following methods:

a. Personal delivery: A copy of the papers may be served by giving it to the respondent in his or her hand. The papers can be handed to the respondent anywhere. If the respondent refuses to take the papers in hand, the papers may be put down on the floor or on a piece of furniture where the respondent can see them.

b. Substituted delivery: A copy of the papers may be given to any individual who answers the apartment door as long as he or she resides or is employed in the apartment and is of an appropriate age and has appropriate judgment to receive the papers. By the next business day, the process server must mail one copy of the papers by regular mail and one copy by certified mail. Keep the certified mail receipts.

c. Conspicuous Place delivery: If the process server is unsuccessful on the first try to serve the papers either by personal delivery or substituted service, then he or she must make a second attempt during a different time period (see time periods above). For example, if no one is home during working hours, the server can return at 7:30 p.m. during non-working hours. After two unsuccessful attempts have been made to serve the person at home either by personal delivery or substituted service, the server may then use conspicuous place delivery. This is also known as “nail and mail.”

This delivery requires that a copy of the papers be affixed to the door of the actual residence of the respondent or be slipped under the entrance door of the apartment. By the next business day, the server must mail one copy of the papers by regular mail and one copy by certified mail to the respondent. Keep the certified mail receipts.

After the petition and notice of petition are served, the process server must fill out an affidavit of service.

Affidavit of Service

1. After the COPY of the notice of petition and petition has been served, the person who served it (process server) shall fill out an Affidavit of Service. You may download the form now by clicking on Affidavit of Service, or you may obtain a form from the Court Clerk. The Affidavit of Service shall include a description of the color of skin, hair color, approximate age, approximate weight and height, and other identifying features of the person served.

2. After the Affidavit of Service has been filled out; the process server shall sign it before a Notary Public and have it notarized.

3. The completed Affidavit of Service must be returned to the Clerk’s Office within 3 days of the personal delivery or mailing. Make copies of the affidavit of service for your records prior to filing it with the court.

4. You should bring a copy of the papers with you to court on the hearing date.

Service Under RPAPL sec. 735

735. Manner of service; filing; when service complete

1. Service of the notice of petition and petition shall be made by personally delivering them to the respondent; or by delivering to and leaving personally with a person of suitable age and discretion who resides or is employed at the property sought to be recovered, a copy of the notice of petition and petition, if upon reasonable application admittance can be obtained and such person found who will receive it; or if admittance cannot be obtained and such person found, by affixing a copy of the notice and petition upon a conspicuous part of the property sought to be recovered or placing a copy under the entrance door of such premises; and in addition, within one day after such delivering to such suitable person or such affixing or placement, by mailing to the respondent both by registered or certified mail and by regular first class mail,

(a) if a natural person, as follows: at the property sought to be recovered, and if such property is not the place of residence of such person and if the petitioner shall have written information of the residence address of such person, at the last residence address as to which the petitioner has such information, or if the petitioner shall have no such information, but shall have written information of the place of business or employment of such person, to the last business or employment address as to which the petitioner has such information; and

(b) if a corporation, joint-stock or other unincorporated association, as follows: at the property sought to be recovered, and if the principal office or principal place of business of such corporation, joint stock or other unincorporated association is not located on the property sought to be recovered, and if the petitioner shall have written information of the principal office or principal place of business within the state, at the last place as to which petitioner has such information, or if the petitioner shall have no such information but shall have written information of any office or place of business within the state, to any such place as to which the petitioner has such information. Allegations as to such information as may affect the mailing address shall be set forth either in the petition, or in a separate affidavit and filed as part of the proof of service.

2. The notice of petition, or order to show cause, and petition together with proof of service thereof shall be filed with the court or clerk thereof within three days after;

(a) personal delivery to the respondent, when service has been made by that means, and such service shall be complete immediately upon such personal delivery; or

(b) mailing to the respondent, when service is made by the alternatives above provided, and such service shall be complete upon the filing of a proof of service.

Stopping An Eviction

If you have received a notice from a marshal that you are to be evicted you must come to court as soon as possible. This is a very serious matter, and you must take care of it immediately. If you do not take care of it, the marshal may remove you and your property from the apartment. You can call the marshal’s office to find out if the marshal has scheduled your eviction yet. The phone number for the marshal’s office is on the notice.

Bring the notice and any other papers that you have received from your landlord, including any rent receipts, to the court. To find out where to go in your county to try to stop or delay your eviction, refer to Locations.

At the courthouse, you will fill out an affidavit in support of an Order to Show Cause. The type of affidavit depends on whether you ever answered or appeared in the case. You will fill out an affidavit explaining why you should not be evicted.

If you never answered a petition and the petitioner obtained a default judgment against you, you will fill out an Affidavit In Support of An Order To Show Cause to Vacate A Judgment Based Upon Failure To Answer. In the affidavit, you will explain the reason you did not answer the petition – for example – you never received a copy of it. You will also explain your defense to the proceeding – for example – you paid all the rent. You can use the free DIY (Do-It-Yourself) Form to make your Affidavit in Support of an Order to Show Cause.

If you answered a petition, and a court order or stipulation resulted, or you did not appear in the courtroom, and a default judgment was entered, you will fill out an Affidavit in Support of an Order to Show Cause To Vacate A Judgment. If you need more time to pay a judgment or an order, indicate how much time you need and why in the affidavit.

The clerk will send your papers, along with the court file, to the judge who handled your case. You may have to wait in the clerk’s office or to go to the courtroom where your papers have been sent. The Judge may sign your order to show cause and stop the eviction until the case can be heard. In some situations, the judge may sign the order but not stop the eviction. The Judge may also sign the order to show cause, but place conditions, such as paying the rent or bringing proof of funds to pay to the court. You must read the order to show cause carefully.

If the judge signs your order to show cause, you must then serve the papers by process server on the other side and on the marshal according to the directions in order to show cause. You must return to the courthouse on the hearing date with proof of service at the time and in the room designated on the Order to Show Cause.

If the judge declines to sign your order to show cause or signs it upon conditions that you do not agree with, you may challenge this determination by going to the Appellate Term. You may go to Locations to find the address of the Appellate Term in your county.

A Resolution Part is a courtroom where the landlord and tenant can discuss their differences before a Judge or Court Attorney to see if an agreement can be reached to settle the dispute. You may also be there for a motion or an order to show cause.

Resolution Part

A Resolution Part is presided over by a Judge, who is assisted by two court attorneys, a clerk, and a court officer. The court officer, wearing the uniform, stands in the courtroom to maintain order. The clerk, sitting at a desk at the front of the courtroom, can answer any questions you may have about the calendar or the Judge’s rules. The court attorneys, who are lawyers, assist the Judge. In addition, volunteer court representatives may be present to assist. The Judge sits on the bench at the front of the Courtroom and hears motions and cases, and reviews stipulations and orders to show cause.

Each Resolution Part has its own rules, which are posted on the wall and can be obtained from the court clerk. You can also view the Judge’s rules at Part Rules. When you arrive in the Resolution Part, you should check in with the clerk so that the court knows that you are present. If you need an interpreter, tell the clerk when you check-in.

When a case is called, the landlord and tenant or their attorneys will meet with the judge or court attorney to discuss the case. If you are not the named tenant or the named landlord but are in court on their behalf, you should let the court personnel know. If you are a tenant and your apartment needs repairs, you can ask for an inspection. If you are a landlord and you have completed the repairs, you can ask for an inspection. You may go to Inspection Request to view the civil court form. You will have to come back to Court at a later date if the Judge grants the request for an inspection. You may have an attorney represent you on your case. If you need time to get an attorney, or if you need documents that you do not have with you today, or if you have another reason for not being ready, you can ask to come back at a later date. This is called an adjournment. You are entitled to one adjournment of at least 14 days.

While you are waiting for the case to be called, you must be quiet. Just as you would want other people to be quiet when your case is being heard, others in the courtroom should receive the same courtesy. If you are approached by the other party or the party’s lawyer in your case, you do not have to speak to that person outside the presence of the judge or court attorney. However, you should feel free to step outside the courtroom to speak to the other party or lawyer only if you want to. Every case will be discussed by either the judge or the court attorney before you leave.

If you are interested in mediation, tell the clerk. In a mediation session, a professionally trained neutral person sits down with the parties, and each party has an opportunity to explain his or her position on the issues in dispute, listen to each other, and work together to reach a mutually acceptable solution. Any agreement reached through mediation will be reviewed by the Court. If you are unable to resolve your case through mediation, your case will be sent back to the Resolution Part. Not all cases are appropriate for mediation. Learn more about mediation at Dispute Resolution Through Mediation. If you wish to have a mediator handle your case, either tell the court clerk or say so when you answer the calendar.

When your case is called, the judge or court attorney will discuss the case to see if the case can be settled. If, after discussing the case, the landlord and tenant agree to a settlement of the case, a document called a Stipulation of Settlement would be written up for the landlord and tenant to read and sign. No one can force anyone to settle a case or sign an agreement. No one should agree to settle a case if they do not agree with the terms of the settlement. The Stipulation of Settlement is a binding agreement between the landlord and tenant. In the Stipulation of Settlement, the landlord and tenant may agree to do certain things by certain dates. If the landlord or tenant fails to follow through on her or his end of the agreement, there may be very serious consequences. It is important that you only make an agreement that you know you can keep and that you agree with.

If, after discussing the case, the landlord and tenant cannot reach an agreement, the case will be referred to another part of the Housing Court, called a Trial Part, for trial. Except, cases assigned to the HP Part remain in part for trial and do not go to a different Trial Part. Your trial will be scheduled for a later day.

Restoration After Eviction

If you think you have been improperly evicted by a marshal based upon a court order or judgment you may seek to be restored to possession. You should come to court as soon as possible. If your landlord has illegally locked you out of your apartment without first going to court and obtaining a judgment of possession and a warrant of eviction, you may also seek to be restored to possession, but you must start a proceeding against your landlord. You may refer to illegal lock-out for more information.

To find out where to go in your county to be restored to possession after eviction by a marshal, go to Locations. At the court, you will fill out an Affidavit In Support Of An Order To Show Cause To Restore To Possession. In your affidavit, you must explain the reasons that entitle you to be put back into your apartment. If you failed to answer a petition or failed to appear in court, you must explain this. If you have defenses to the proceeding, for example, that the rent was paid and you have receipts, you must list your defenses. You should bring all documents in support of your claim. Once you have filled out the Affidavit, the clerk will witness it for you.

The clerk will then submit your Affidavit and an Order to Show Cause to a Judge for review. You may have to wait in the clerk’s office or go to the courtroom where your papers have been sent. If your application is signed, you will need two or three copies of the Order to Show Cause and Affidavit in Support. You will either be given copies or lent the originals so that you can make the copies yourself. The original Order to Show Cause and Affidavit in Support goes back to the Clerk. You must then serve a copy of the papers on the other side in the manner directed in order to show cause.

You must return to court on the hearing date, which will generally be within one or two days, at the room and time indicated in order to show cause. You should bring proof of service, a copy of the papers, and any other proof of your defenses with you on the hearing date.

If the judge declines to sign your Order to Show Cause or signs it with conditions that you do not agree with, you may challenge this determination by going to the Appellate Term. You may refer to Locations to find the addresses of the Appellate Term in your county.

You can also watch a community seminar discussing what legal and procedural steps to take if you have been evicted from your home called “What to Do If You’ve Been Evicted.” 

Adjournments

An adjournment may only be granted by the judge presiding at the time of the hearing. You can not call the court clerk for this purpose because the clerk is not permitted to grant adjournments. To get an adjournment, you should appear at the hearing at the appointed time. You will be given an opportunity to explain to the judge your reason for requesting an adjournment. If you know the name of the Judge assigned to your case, you should check the Judge’s Part Rules to see if he or she has any requirements that may not be covered in this section. Click on Judge’s Rules to check. You are entitled to one adjournment of at least 14 days.

Sending Someone to Request the Adjournment

If it is an emergency and you cannot appear yourself to request the adjournment but wish to send someone on your behalf, you must give that person written authorization to make the request for you. That person must bring the written authorization to the court.

The written authorizing statement which allows someone to request an adjournment on your behalf must contain the following items:

1. The index number of your case.

2. Your name and your address.

3. A signed statement that you are allowing the person to request an adjournment for you.

4. The name of the person or legal service you are sending.

5. The reason you do not appear yourself to make the request.

The person or legal service who comes to court for you must bring this statement and all other papers that you received and should be able to tell the clerk the reason for the request.

The Judge may deny the request for adjournment. If the request is denied, you will be marked in default, which may be serious. You can learn more about this and other housing court procedures by reading our Legal and Procedural Information sections.

Writing a Letter to Request an Adjournment

In an extreme emergency, where neither you nor anyone else can appear on your behalf, you may write a letter to the court. You must explain your reason for making the request and be sure to include the case number, the year of your case, the scheduled date of the hearing you will not be able to attend, and the Part and room number where your case is scheduled.

Address the letter to the appropriate civil court clerk’s office. Send a copy of this letter to the other party to the action. If the judge decides to grant your adjournment, you will be notified.

If you are able to go to the courthouse before your court date, you can request an adjournment by filling out a form that you can get from a court clerk. If the request is denied, you will be marked in default, which may be very serious.

Orders to Show Cause

An Order to Show Cause is a way to present to a judge the reasons why the court should order relief to a party. For example, a tenant who has failed to appear and had a judgment entered against him or her may ask the court to vacate the judgment and restore the case to the calendar; or a landlord may request an order awarding a judgment and warrant of eviction against a tenant who has failed to live up to an agreement to pay rent.

The Order to Show Cause is an alternative to the notice of motion and is different from it, as the Order to Show Cause can shorten the time within which the parties must return to court. It is often used in emergency situations where a stay of the proceedings is required or if an immediate result is sought. Another significant difference is that a judge must sign an Order to Show Cause. This means that the judge may decline to sign it. A notice of motion will appear on the calendar automatically and does not need a judge’s signature. If you are not sure a judge would sign your order to show cause, if you do not need to appear in court within the motion service time, or if you do not seek interim relief such as a stay before the motion is heard, you may decide to bring a motion instead of an order to show cause.

The Order to Show Cause informs your opposition of what you are seeking from the court and why. It provides the date, time, and location where the request will be made. The Order to Show Cause often contains a direction to the parties that they stop some specific activity, like an eviction, until the court hears or decides the motion.

In limited cases, an Order to Show Cause can be used to start a case as an alternative to a notice of petition. Ordinarily, an HP case and an illegal lockout are commenced this way.

The requirements for making a motion are standardized and generally more demanding than that for making an Order to Show Cause. Order to Show Cause forms are available at the courthouse, and a judge can set the terms, such as when it will be heard in court, how it will be served on the other side, and any conditions or requirements in order to obtain a stay of enforcement of an order or judgment pending the hearing.

The Order to Show Cause must be accompanied by an “Affidavit in Support” and copies of any documents that support the request and would persuade the judge your application should be granted. Copies of all these papers must be served on all the parties in the manner directed on the Order to Show Cause itself. A party served with an Order to Show Cause may prepare papers to oppose the motion. On the hearing date, all parties must come to court, and the judge will decide the Order to Show Cause.

If you would like to bring an Order to Show Cause or if you have been served with one and you want to oppose it, continue reading below.

Affidavit in Support

An Order to Show Cause must be supported by an Affidavit. An Affidavit is a sworn statement made before the clerk or notary public , which explains to the court why your request should be granted.

The Clerk will give you a free Civil Court form when you come to court, or you may use one of your own or download a form at Affidavit in Support. To find out where to go in your county to bring an Order to Show Cause, go to Locations. If you missed your court date or didn’t answer a petition in a nonpayment or holdover case, you can use the Tenant Affidavit to Vacate a Default Judgment program to make your affidavit in support of your order to show cause. If you need more time to do what you were ordered to do or agreed to do, or the landlord did not do what he or she was ordered to do or agreed to do, or there are mistakes in a stipulation, and you need to come back to court to ask the judge for something in your case, you can use the Tenant Affidavit to Restore Case to Calendar DIY program to make your affidavit in support of your order to show cause. In the Affidavit in support, you should:

1. State the reason you are making your request.

2. State the relevant facts about your case.

3. State whether or not you have ever made the same request before.

4. Attach copies of any relevant documents you are referring to in your Affidavit.

After you have filled out the Affidavit, you must sign it at the bottom in front of the clerk or in front of a notary so that it can be attached to the Order to Show Cause and submitted to a Judge.

Submission to the Judge

After the Affidavit is witnessed by the clerk, the clerk will then submit your Affidavit with the Order to Show Cause to a Judge for review. You may have to wait a while in the clerk’s office.

If your application is signed by a Judge, you will need two or three copies of the Order to Show Cause and supporting papers. You will either be given copies or lent the originals so that you can make copies yourself. There are copy machines in the clerk’s office, so bring change.

The original Order to Show Cause and Affidavit in Support goes back to the clerk. You must then serve a copy of the papers on the other side in the manner directed in order to Show Cause. The Order to Show Cause will often contain a provision requiring service by a specific date. If you are a respondent who has been served with a Marshal’s Notice, you will also have to serve a copy of the Order to Show Cause on the Marshal. If your Order to Show Cause contains a provision that stays any eviction until the hearing date, and if you fail to serve the Marshal after the Judge signs your Order to Show Cause, you might get evicted.

The papers should be served by a process server or someone over the age of 18 who is not a party in the action unless the judge has permitted otherwise. The clerk will give you further instructions, or you may speak with a Housing Court counselor in the Help Center.

Opposition Papers

If you wish to oppose an order to show cause, you may prepare an Affidavit in Opposition. If you do not submit opposition papers and/or fail to appear in court to oppose the Order to Show Cause, the judge may decide to grant the relief requested based on the information in order to Show Cause and your default.

An affidavit is a sworn statement that must be signed in front of a notary public or a court clerk. You may attach copies of any relevant documents to the Affidavit in Opposition. You can download a free Civil Court form by at Affidavit in Opposition; you may use your own form or obtain one from the clerk or the help center.

After you have prepared the opposition papers, follow the procedure outlined below:

1. Copies of the opposition papers must be served  by the process server on all other parties.

2. Opposition papers must be served by the process server.

3. If a party has an attorney, the papers must be served by  process server on the attorney. Service of the opposition papers may be made by delivering the papers to the attorney personally or by mailing the papers to the attorney.

4. After the opposition papers have been served, the process server must fill out an Affidavit of Service, which states how and when the papers were served. The Affidavit of Service must be signed in front of a notary or a court clerk. You may download the free Housing Court form at Affidavit of Service.

5. Make a copy of the Affidavit of Service for your records and attach the original to the copy for the court.

6. Opposition papers can be filed in the courtroom on the date that the Order to Show Cause is heard or in the clerk’s office before that date.

Cross-Motions

If you have been served with an order to show cause and wish to ask the court for relief of your own, you may bring your own Order to Show Cause. Tell the clerk that you want your Order to Show Cause heard on the same day as the Order to Show Cause that is already scheduled to be heard, and if there is enough time, they can be calendared together. You can also schedule a cross-motion for the same day as the Order to Show Cause is noticed to be heard.

Reply Papers

If you have received opposition papers prior to the hearing date of the Order to Show Cause, you may have time to prepare an affidavit in reply. You may go to Reply Affidavit to download a free Civil Court form; you may use a form of your own, or you may obtain one from the clerk or the Housing Court Help Center. You must serve by process server the reply affidavit on the other side and bring extra copies and the original, along with proof of service, to the courtroom on the date the Order to Show Cause is to be heard. If you did not have time to prepare reply papers and feel that it is necessary, you could ask the court for an adjournment for time to prepare reply papers. The judge may or may not grant your request.

Appearing in Court

You are required to appear in court on the date the Order to Show Cause is scheduled to be heard. You must appear at the time and place stated in order to Show Cause. If you need directions to the courthouse, Directions are available. In general, if you do not appear, and you are the moving party, your Order to Show Cause will be denied; if you do not oppose the motion, the Order to Show Cause may be granted on default. You should give yourself extra time to get to the courtroom since all visitors are required to go through metal detectors at the entrance to the courthouse. You should bring your copies of the papers with you and any papers and affidavits that you have not yet filed with the court.

The courtroom is presided over by a Judge, who is assisted by a court attorney, a clerk, and a court officer. The court officer, wearing a uniform, maintains order in the courtroom. The clerk, sitting at a desk at the front of the courtroom, can answer any questions you have about the calendar or the judge’s rules. The Judge sits on the bench at the front of the courtroom and hears arguments for and against motions and orders to show cause, reviews stipulations of settlement, and decides to request for adjournments. The court attorney assists the Judge and may hold a conference with the parties to see if the order to show cause can be settled.

There is a calendar posted outside the courtroom that lists all the cases that will be called that day. Each case has a number. You should sit quietly in the courtroom and listen for your case to be called. You will have a chance to explain your case to the judge or the judge’s court attorney. You always have the right to go before the Judge. You are not required to settle the Order to Show Cause, and you may request a hearing on the record. In that event, the Judge will decide your application.

If you are not ready to discuss the Order to Show Cause on the return date, or you need more time to prepare papers, when the case is called, you can ask the court for a postponement or an adjournment of your application. If your case has been adjourned before and marked “final,” it means the judge will not allow any further adjournments.

The other side may want to discuss the Order to Show Cause with you alone to see if you can come to an agreement. If you reach an agreement, you and the other side can write the terms of your agreement into a stipulation. However, you do not have to talk to the other side alone. You can wait until your case is called by the court, and the judge will decide.

The Decision on the Order to Show Cause

If you and the other side are unable to agree about the relief being requested, the judge will make a decision on the Order to Show Cause. Sometimes, the judge makes a decision immediately. The judge has 30 days to decide the Order to Show Cause. Some Judges will mail you a copy of the order if you provide a self-addressed stamped envelope. Otherwise, you will have to go to the courthouse to get a copy of the decision. To find out where to go in your county, refer to Locations.

Depending on the relief sought, the judge’s decision may award a judgment to the winning party. When the winning party enters the judgment and serves a copy of the judgment with notice of entry on the losing party, this start’s the loser’s time to appeal running. To learn more, refer to Serving Notice of Entry.

If you are unhappy with the judge’s decision and think that the judge made a legal or factual mistake, you can make a motion to reargue or renew or file an appeal. The filing of an appeal alone does not stop or stay the execution of a judgment. An appeal requires the posting of an undertaking to stay an eviction. 

An appeal must be filed within 30 days from the service of the order appealed from and written notice of entry. If neither side has served a copy of the decision and order with notice of entry, there is no time limitation on the filing of an appeal.

Stipulations and Settlements

In the Resolution Part, Mediation, or even in the Trial Part, the parties, with the assistance of the Judge, the Judge’s court attorney, or the court mediator, will discuss the case in an effort to reach a settlement. Most cases in Housing Court are settled, meaning the parties come to an agreement, usually called a “Stipulation of Settlement,” which is written down and signed by the parties and the Judge. 

When you sign a Stipulation of Settlement, you are making a binding legal agreement that must be followed. Therefore, you must be very careful to read the agreement, understand it, and be certain that you will be able to do everything you have promised. The court attorney can explain any details in the Stipulation of Settlement that you do not understand. If you have any questions or doubts, you have the right to ask to talk to the Judge, who must approve your settlement.

What a stipulation provides will depend on what the parties negotiate and the facts of the particular case. For more information about settling a nonpayment or holdover case, click on Tenant’s Guide to Housing Court or Landlord’s Guide to Housing Court.

If you decide to sign the stipulation of settlement, the judge will speak to you to make sure you understand the terms of the settlement. This is called an allocation. If you do not wish to settle the case, you have a right to a trial before a judge.

If you sign an agreement and then you cannot do what you promised – for example, you cannot pay on time or make repairs on time – you should come to court and bring an Order to Show Cause to request more time. If the other side has not done what they are supposed to do in the agreement, you can also come to court and bring an Order to Show Cause to request help from the court. Click on Order to Show Cause if you want to learn more. A Judge will read your Order to Show Cause and decide whether to grant your request.

Stays Before Entry of Judgment

Any party may seek a stay of a proceeding before a judgment is entered.

A judge may stay proceedings in a case upon terms that are just, as well as for the reasons that are discussed below.

A landlord or a tenant seeking to obtain an extension of time to comply with an order to pay money, leave the premises, make repairs, or correct mathematical errors, may make an application to the court.

In order to obtain a stay, you must come to court and fill out an Order to Show Cause. To read more about this process, click on Orders To Show Cause. To find out where to go in your county, click on Locations & Phone Listings. 

If a judgment has already been entered in your case and you seek a stay, click on Stays after entry of judgment.

Stay for Failure to Make Repairs

A tenant may seek a stay of a pending nonpayment proceeding if he/she was constructively evicted or upon proof that conditions dangerous to life, health or safety exist, as long as the condition was not caused by the tenant. A stay may also be requested if violations have been placed against the premises showing constructive eviction or dangerous conditions. (There must be proper proof that notice or order to remove the violations has been made by the city department charged with enforcement.) Once violations have been placed, the burden of disproving the condition described by the violation is on the landlord or petitioner.

In order to obtain the stay, the tenant must deposit the amount of rent due with the court. The stay may be vacated if such deposit is not made or if the conditions are repaired. During the stay, the court may direct the release of funds on deposit to pay for maintenance of the premises, repairs, or utility bills.

Stay Based Upon Utility Shut-Off

A tenant residing in a multiple dwelling may seek a stay of a pending proceeding in the event that utilities are discontinued due to the landlord’s failure to pay. The stay shall remain in effect until the landlord pays the amount owed and the utilities are restored to working order.

Stay if Building Where Tenant on Public Assistance Resides has Hazardous Violations.

A tenant who receives welfare may seek a stay of entry of judgment in a nonpayment proceeding if there are violations in the building for dangerous conditions. This defense is available only for violations reported by DHPD to DSS. DSS must have withheld the rent from the landlord due to the violations in order for the tenant to assert this defense.

Stay Based Upon Change of Attorneys

There is an automatic stay of a proceeding if the attorney of record of any party dies, becomes incapacitated, or is removed, suspended, or otherwise disabled at any time before judgment. No further proceedings can be taken against this party without permission from the court. The stay continues until thirty days after notice to appoint another attorney has been served upon the party personally or in a manner directed by the court. If at the end of the stay the party has not replaced his/her attorney, or if he/she decided to continue without an attorney, prose, the proceedings may continue against this party.

Stay Based Upon DHCR Order

In some cases, a cause of action or a defense in a proceeding brought in Housing Court may be based upon an order issued by the DHCR. If a landlord or a tenant of a rent-stabilized or rent-controlled apartment files a complaint with the DHCR and disagrees with the resulting order issued by a District Rent Administrator, he/she may bring a Petition for Administrative Review (PAR) at the DHCR. The order may have stayed pending the determination of the PAR.

The proper filing of a PAR against a DHCR order, other than an order adjusting, fixing, or establishing the legally regulated rent, stays that order until the DHCR Commissioner makes a final determination. Where the DHCR order provides for an adjustment in rent, the retroactive portion of the adjustment, if any, is generally stayed, but not the prospective portion.

The DHCR Commissioner may grant or vacate a stay of its orders under appropriate circumstances, on such terms and conditions as the Commissioner deems appropriate.

 

Stays after Entry of Judgment in Nonpayment Proceedings

A tenant who lost at trial and sought to stay the issuance of the warrant of eviction must apply to the judge who granted the landlord the judgment.

A landlord or tenant seeking to obtain an extension of time to comply with orders to pay money, vacate the premises, make repairs, or correct mathematical errors will be directed to the judge presiding in the Part to which the case is assigned. If that judge is not available, the party will be directed to a different judge.

The court has a general power to stay proceedings in a proper case, upon such terms as may be just, as well as specific powers as discussed below.

In order to obtain a stay, you must come to court and fill out an Order to Show Cause. To read more about this process, click on Orders To Show Cause. To find out where to go in your county, click on Locations & Phone Listings.

Staying Eviction by Paying Rent

If the tenant in a nonpayment proceeding pays to the landlord all of the rent then due (including the rent that has become due since the date of the petition) before the court case is heard, the landlord must accept the rent, and the case cannot go forward. At any time before a warrant has been issued, the tenant in a nonpayment case may obtain a stay of issuance of the warrant by depositing the full amount of rent due plus the costs of the proceeding with the clerk of the court. The amount deposited will be turned over to the landlord upon request.

Even after a warrant has issued, as long as there has not yet been an actual eviction, if the tenant in a nonpayment proceeding pays all of the rent, then due to the landlord, the warrant must be vacated, unless the landlord can show that the tenant withheld the rent in bad faith.

Stay of Evictions of Persons or Dependents of Persons Serving in the Military

A landlord may not evict a person serving in the military, or his or her spouse, children, or other dependents from an apartment, during the period of military service without an application to the court. On such an application, the court may stay the proceedings for six months unless the court determines that the respondent’s ability to pay rent is not materially affected by the military service.

Under certain circumstances, a person serving in the military or his or her dependents may also seek a stay of an action or proceeding or a stay of the enforcement of a judgment or order.

Automatic Stay After Filing Bankruptcy Petition 

When a residential tenant files a bankruptcy petition, an automatic stay prevents the landlord from bringing or continuing a case to obtain possession and from enforcing a judgment obtained before the start of the bankruptcy case. The purpose of the stay is to give the debtor a breathing spell from his creditors.

The automatic stay only applies to proceedings concerning the property in which the debtor has an interest at the time the bankruptcy proceeding is commenced, which is when the bankruptcy proceeding is filed.

In landlord/tenant cases, the court may determine that the tenant no longer has the interest to protect at the time of filing a bankruptcy petition if the warrant of eviction has already been issued. In both the New York State courts and the federal Bankruptcy Court, depending on the facts of the individual cases, the issuance of the warrant of eviction may or may not be a sufficient basis upon which to lift or modify the automatic stay or to conclude that the bankruptcy petition did not qualify for an automatic stay.

After a tenant files for bankruptcy, a landlord may seek to have the stay in Bankruptcy Court vacated in order to commence or continue an eviction proceeding. The Bankruptcy Court may terminate, modify or condition the stay based upon various factors, including payment of ongoing rent, the condition of the premises, and the equities of the case. If the stay in Bankruptcy Court is lifted, the Civil Court will have jurisdiction to hear and decide the eviction proceeding, and the landlord who obtains a judgment and warrant of eviction will be able to enforce a possessory judgment with eviction. 

If the tenant’s debt, which includes past rent due, is discharged at the conclusion of the bankruptcy proceeding, the landlord may then seek recovery of the premises and eviction of the tenant/debtor. This is because while the debt may have been discharged, it has not been extinguished, and the discharge of debt is not equivalent to the payment of a debt. A discharge only prevents a creditor from proceeding against a debtor on the debt as a personal liability but does not eliminate any of the other consequences of that debt. Therefore, as long as the landlord does not attempt to obtain a money judgment for a discharged debt, the landlord is free to commence a nonpayment proceeding to recover possession. Thus a landlord may evict the tenant/debtor for his/her failure to pay rent which has been discharged in bankruptcy. 

A debtor may voluntarily repay a debt that has been discharged even though the debt can no longer be legally enforced.

 Vacating A Default Judgment

If you have been sued in Housing Court and a judgment has been entered against you because you defaulted, that is, you failed to answer or did not show up to defend yourself, you can seek to have the judgment vacated (thrown out). If you do not, you could be evicted from your home by a marshal as a result of the judgment once the warrant of eviction is issued.

If you are not sure whether a judgment has been entered against you, refer to Locations and find out where to go in your county to check. If you find that a judgment has not been granted against you, then you should immediately file an answer. If you have already received a notice from a marshal, you should come to court right away.

To vacate a default judgment and obtain a stay of eviction, you should fill out an Order to Show Cause. An Order to Show Cause is a legal paper signed by the judge that orders the other side to appear in court and “show cause,” that is, give a good reason why the judgment should not be vacated. You must fill out an Affidavit in Support of the Order To Show Cause explaining the reason you did not go to court, such as, you never received notice of the proceeding, or you were sick; and, you must explain your defenses to the claims against you, such as, you do not owe the rent claimed, or you did not install the dishwasher in the kitchen in violation of the lease. To learn about the procedure, go to Order to Show Cause. If you missed your court date or didn’t answer a petition in a nonpayment or holdover case, you can use the Tenant Affidavit to Vacate a Default Judgment program to make your affidavit in support of your order to show cause.

If the judge vacates the default judgment and restores the case to the calendar, you must be ready to prove your side of the case.

Warrants

A warrant is a document issued by the court based upon a judgment of possession awarded by the court, which permits the sheriff or marshal to remove persons from premises. The warrant tells the sheriff or marshals the earliest date on which an eviction can take place according to the court’s judgment. The warrant also directs the sheriff or marshal to remove all persons who were named in the court case from the premises.

A warrant can only be issued to a sheriff or a marshal. After the judgment is awarded, you must contact the marshal so that the marshal can requisition the warrant from the court. For a list of New York City marshals, click on NYC Department of Investigation. The marshal will require the facts of the proceeding, including the index number, the names of the parties, the address of the premises, and a copy of the judgment, or, if it is a judgment based upon the respondent’s failure to answer, a letter requesting entry of the judgment. You will also have to pay the marshal a fee. The marshal will submit the papers to the court.

The warrant clerk will review the papers, and if everything is in order, the clerk will issue the warrant to the marshal. If the papers are defective, the clerk will return them to the marshal for correction.  After the marshal receives the warrant, the marshal is then ready to proceed with the eviction.

Judgments in Nonpayment Cases

The outcome of a landlord/tenant case is either a judgment, dismissal, or discontinuance.

There may be a judgment based upon the respondent’s failure to appear or to answer, after trial, by a stipulation of settlement of the parties or by motion.

The final judgment determines the issues raised in the proceeding and establishes the rights and obligations of the parties. The successful party is also awarded the costs and disbursements of the proceeding.

If the petitioner cannot show it is entitled to a judgment, the proceeding may be dismissed with prejudice and cannot be brought again, or dismissed without prejudice and may be brought again. A case can also be discontinued by the petitioner before the respondent has answered, with permission of the respondent or by order of the court.

A respondent’s answer may contain a counterclaim, and the court may render a judgment on that counterclaim in favor of the respondent, or the counterclaim may be dismissed or discontinued with or without prejudice or severed.

If the court awards the petitioner a possessory judgment, then a warrant of eviction may issue.

A final judgment in a nonpayment proceeding generally provides for both a money judgment and a possessory judgment. If the money judgment is timely paid, both the monetary and the possessory judgment are satisfied. If the money judgment is not timely paid, the respondent can be evicted based upon the possessory judgment, and the respondent is still liable to pay the money judgment amount. In some cases, the court may also award a non-possessory money judgment, which means that the respondent is responsible for paying the money judgment but cannot get evicted for not paying it.

Judgment when Respondent Fails to Answer

After a respondent is served, he or she may either answer or not answer. If the respondent fails to answer within 10 days of the service of the notice of petition and petition, the petitioner may, after the respondent’s time to answer has expired, ask the court to enter a judgment. This judgment might be for money if the petition and notice of petition were served by in-hand delivery. Otherwise, it will be for possession only.

In most cases, the judgment and the warrant are requested at the same time. A petitioner will contact a marshal and give the marshal a letter addressed to the court requesting that a judgment be entered. In addition, the petitioner must provide the marshal with a current non-military affidavit. For more information, see Non-Military Affidavit below. The marshal will then submit the papers to the court together with a requisition for the issuance of the warrant.

When the clerk receives these papers, the clerk will review the papers for legal and procedural sufficiency. If the papers are correct, the clerk will send them to a judge for him or her to review. Ultimately, it is up to the judge to order that the judgment be entered and the warrant issued.

After the judge signs the judgment, the clerk will issue the warrant to the marshal. The Marshal may then evict the respondent.

Judgment when Respondent Fails to Appear

If the respondent answers, the clerk will assign the case to a part. On the court date, the respondent may fail to appear. If the respondent fails to appear after the case is called on the calendar, the petitioner may ask the judge to enter a judgment against the respondent. This judgment will generally be for money and possession. The judge, or the court attorney, will review the papers for legal and procedural sufficiency. For more information, click on Requirements for a Nonpayment Petition. You will also be required to provide information as to the respondent’s military status. If all the papers are in order, the judge will direct that a judgment be entered. The judgment based on the respondent’s failure to appear will usually have a five-day stay of the issuance of the warrant, and the judge may require that the petitioner serve a copy of the judgment on the respondent. The judgment will normally permit the issuance of a warrant. Most petitioners contact a marshal, provide information and/or a copy of the judgment to the marshal, and the marshal then files a request for the issuance of a warrant with the clerk.

Judgment based on Stipulation of Settlement

If both sides appear, the case will be ready to proceed. The vast majority of non-payment cases are settled in conferences which may include the petitioner, the respondent, the attorneys of either party, mediators, court attorneys, and at times even the Judge.

If the case is settled, a stipulation of settlement will be written. For more information, click on Stipulations of Settlement. The stipulation of settlement may provide for the issuance of a judgment and warrant. The stipulation may contain requirements for the petitioner to notify the respondent before the warrant may be issued. The stipulation may require the petitioner to make a motion to the court, either on notice or without notice to the other side, before the warrant can be executed. Whatever the stipulation requires, the conditions must be complied with before the judgment and/or warrant can be entered or issued.

When the petitioner has a judgment and a warrant, the marshal still cannot evict the tenant until the earliest eviction date set by the court has passed and the marshal has served the tenant with a Notice of Eviction.

Judgments after Trial

If both parties appear and a settlement cannot be reached, the case will be sent to a Trial Part for trial before a Housing Court Judge. If the petitioner proves his or her case, the Judge will direct that a judgment be entered after the trial. This judgment will generally be for money and possession. If the petitioner fails to prove his or her case, the judge will dismiss the case.

The Judge may not issue his or her decision on the same day that you try the case. This is called “decision reserved.” The Judge may send you a copy of the decision in the mail. However, to be certain, you can call or come to court to learn if there has been a decision.

The judgment will normally permit the issuance of a warrant. Most petitioners contact a marshal, provide information and/or a copy of the judgment to the marshal, and the marshal then files a request for the issuance of a warrant with the clerk. For more information, click on Warrants. Once the warrant issues, the marshal may then evict the respondent.

Non-Military Affidavit

In order to obtain a judgment on default, the petitioner must provide information to the court regarding the respondent’s military status. You may be required to file a non-military affidavit setting forth facts as to the basis of the belief that the respondent is not serving in the military or is not a dependent of someone in military service. This affidavit generally must be less than 30 days old. You may click on Affidavit of Military Investigation to view and/or download a copy of the free Civil Court form. For more information, you may click on Non-Military Affidavit to read the Civil Court Directive on the subject.

Trial 

If the parties were unable to reach a settlement in the Resolution Part, the case would be ready to be tried. The case will be assigned to a Trial Part. The court will tell the parties where and when to appear for the trial.

At the trial, the parties each get a chance to present their side of the case, and the judge will make a decision and judgment based on the evidence and arguments presented. The parties must have all their witnesses and evidence ready to present at the trial. If you have a good reason for not being ready to try the case, such as a medical reason, or one of your witnesses is out of town, you can ask the Judge for an adjournment. If this becomes necessary, you should notify the other side ahead of time by mail that you are going to ask the court for an adjournment.

A case may still be settled in a Trial Part. A settlement is a voluntary, binding agreement that resolves the differences between the parties to a lawsuit. If the case is settled, there is no trial.

Jury Trials

If the petitioner or respondent has properly filed a jury demand and paid the jury demand fee, the case will be tried before a jury. Jury trials are very infrequent in Housing Court proceedings because most leases contain jury waiver clauses. If the case is tried before a jury, the jury, not the judge, will make the decision, and then a judgment will be entered based on the verdict reached by the jury. If the jury is unable to reach a verdict, the Judge will have to declare a mistrial , and the case will have to be tried again before a new jury.

A jury trial begins with jury selection. A panel of prospective jurors is called for voir dire. The Court will examine the jurors as to their qualifications. A party is entitled to challenge a juror for cause when a prospective juror is not qualified, such as, is not impartial, is related to one of the parties, or will not follow the law. A party is also entitled to a limited number of peremptory challenges. Six jurors, plus alternates, must be selected to hear the case.

After each side presents testimony and evidence, the judge will deliver a charge to the jury, which sets forth the jury’s responsibility to decide the facts in light of the applicable rules of law.

Testimony of Witnesses

The petitioner’s case is presented first. After being sworn as a witness, the petitioner will tell his or her version of the incident. All relevant papers or other evidence should be presented at this time to be offered in evidence. When the petitioner has finished testifying, the respondent has the right to ask questions. This is called cross-examination. After a party has cross-examined a witness, the other side has the chance to redirect the examination of the witness in order to re-question the witness on points covered during the cross-examination. Sometimes the Judge may ask questions to clarify matters. Other witnesses may be presented in support of the petitioner’s claims, and they,too, can be cross-examined by the respondent and questioned by the Judge.

The respondent may then be sworn in and tell his or her side of the story and offer evidence. All papers or other evidence should be presented at this time to be offered in evidence. When the respondent has finished testifying, the petitioner has the right to cross-examine the respondent. After a party has cross-examined a witness, the other side has the chance to redirect the examination of the witness in order to re-question the witness on points covered during the cross-examination. Sometimes a Judge may ask questions to clarify matters. Other witnesses may be presented in support of the respondent’s claims, and they, too, can be cross-examined by the petitioner and questioned by the Judge. After the presentation of the respondent’s case, the petitioner has the right to ask the Judge for an opportunity to present evidence to rebut the respondent’s case.

Objections

There is a body of law called “rules of evidence.” The purpose of these rules is to make sure that evidence is relevant, reliable, and authentic. Because of these rules, certain testimony or documents may not be legally admissible. For example, an affidavit is not admissible in evidence because its admission would deprive the other side of the right to question the person who wrote it.

Parties to a lawsuit have a right to object to the introduction of evidence or the way a question is being asked or answered. The proper way to object is to say “objection.” The Judge may then ask what the basis for the objection is. If the Judge agrees with the objection, the Judge will say “sustained,” and the evidence will not be admitted. If the Judge disagrees with the objection, the Judge will say “overruled,” and the evidence will be admitted.

Trial Decision

When the trial is completed, you may have to wait for the Judge to write a decision. You may contact the court to see if a trial decision has been issued.

In nonpayment or a holdover proceeding, the Judge may award a possessory judgment and/or a money judgment to the winning party. For more information, click on Judgments to read the appropriate section. If you are the losing party, you may want to appeal.

 Subpoenas

If you are unable to get a witness to appear voluntarily, or you need records produced in court that are not in your possession, you can ask the court to issue a subpoena. A subpoena is a legal document that commands the person named in it to appear in court to testify or to produce records. For example, police and fire department, Buildings Department, hospital, telephone, or Con Edison records can be subpoenaed. An expert witness cannot be compelled to testify by subpoena.

If you would like to subpoena a witness or documents, you must come to the Clerk’s office and fill out the subpoena forms. Click on Locations to find out where to go in your county. You can also get help with a subpoena from the Help Center or from the court attorneys in the Part where your case is assigned. After you have filled out the forms, the clerk will present the subpoena to the judge for signature. You must then arrange for the service of the subpoena and the payment of a witness fee and, where appropriate, travel expenses for the person subpoenaed. You are responsible for paying these fees unless the judge who signs the subpoena specifically waives payment. Process Server or anyone who is 18 years of age or older and who is not a party to the case can serve the subpoena. A party cannot serve a subpoena themselves unless the judge who signs the subpoena orders that it can be served by the party. A copy of the subpoena must also be served on the party on the other side of the case or on that party’s attorney if there is one.

A subpoena can be served any time before the hearing. However, a witness should be given a “reasonable” amount of time before he or she must appear. Generally, it is considered reasonable to serve the subpoena at least 5 days before the hearing date. This will allow the person subpoenaed to prepare the items you request or appear at the hearing.

For information on serving eviction papers, contact our eviction service (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out our Frequently Asked Questions About Process Servers.

TENANT RIGHTS IN FORECLOSURE CASES

When the plaintiff starts a foreclosure case against the owner of your home, the law says that the plaintiff must tell the tenants within 10 days. You may find out about the case by seeing a notice posted on the door to your building or the plaintiff may give you a copy of the foreclosure Summons and Complaint. Do not worry if your name is on the papers. This does not mean that you have to move out. Many things can happen:

  • The owner may settle the case and keep the property
  • The bank may not be able to prove its case
  • The case may take a very long time, often even a year, and you may move before it is over
  • The new owner may want to keep you as a tenant
  • You may have the right to stay anyway

The point is, you don’t have to do anything right now. During the foreclosure case, the owner is still in charge of keeping your home or apartment in livable condition and still collects rent and can start a case in Court against you. But, you can’t be evicted without a court order. Whoever buys the building at a foreclosure sale can’t make you move out right away. The law says that the new owner (or the bank if the bank still owns the building) has rules to follow if the new owner wants to evict you. Whether the new owner wants to evict you or not, you should get a notice from the new owner. After the sale, you have to pay your rent to the new owner.

Eviction Rules

After a foreclosure sale, federal law says that the new owner or the bank must give you a written 90 day notice to move out before starting a case to evict you in Court, even if you don’t have a lease. If you have a lease that has more than 90 days left on it, you can stay until the end of the lease unless the owner wants to live in your apartment. If the new owner wants to live in your apartment, he or she can send you a 90 day notice telling you to move for that reason. But, the 90 day rule does not apply to rent-regulated tenants, like rent-controlled or rent-stabilized tenants. Their rights are the same before and after the building is sold in foreclosure to a new owner. This includes the right to a renewal lease.

If you don’t move out after a 90 day notice, the new owner can start a case in court to evict you. This case is called a holdover. The owner’s court papers must have any notice he or she must give you, plus the 90 day notice and a certified copy of the new deed attached or you can ask that the court to dismiss the case by making a motion or order to show cause. But, even if the case is dismissed, the owner can start it again.

If you are evicted because of a foreclosure case, the court records about your eviction must be hidden from the public (sealed).

For more information related to evictions visit https://undisputedlegal.com/services/eviction-services/ or Call (800) 774-6922, Representatives are ready to assist you.

THE LANDLORD TENANT EVICTION PROCESS NEW JERSEY

Residential tenants in New Jersey have certain rights. They cannot be evicted (thrown out or locked out) without a judgment from the New Jersey Superior Court.

Some reasons a landlord might file a complaint in the Landlord/Tenant section of Superior Court:

  • The tenant failed to pay rent.
  • The tenant is often late in paying rent.
  • The tenant has repeatedly acted in a disorderly manner.
  • The tenant has caused destruction or damage to the property willfully or through gross negligence.
  • The tenant has violated the terms of the lease or other document.
  • The tenant has been convicted of a drug offense.

In most cases, a landlord must give a tenant a written notice to cease, or stop, their disorderly conduct or other violation. The landlord can only more forward with an eviction if the tenant continues the conduct after receiving the notice to stop.

Also, complaints other than non-payment of rent generally require notice ending the tenancy. These notices must be attached to the complaint at the time of filing. Under federal law, public housing residences require the landlord to send a copy of the complaint and any eviction notice to the Public Housing Authority (“PHA”) on or before the complaint is filed in court.

Unpaid rent:

If the landlord files a complaint in Superior Court, the tenant cannot be evicted if all of the outstanding rent owed is paid by the close of business on the day of the trial.

If you are successful in court in getting a judgment of possession , the tenant can be evicted. The judgment of possession does not entitle you to the outstanding rent. If you want to seek back rent after the judgment of possession is ordered, you must file a claim in the regular Special Civil Part or Small Claims section to collect the outstanding rent.

Do I need a lawyer to handle my case?

A landlord that is a corporation or limited liability partnership must be represented by a New Jersey attorney in all matters filed in the Landlord/Tenant section of Superior Court.

Things to think about before representing yourself in court

How to File a Complaint in Landlord/Tenant Court

  1. Complete Forms
    • Verified Complaint
    • You must provide the correct name(s) and address(es) for each person named as a defendant. Also, you must identify the defendant(s) as individuals, proprietorship, partnership or corporation.
    • Tenancy Summons and Return of Service
  1. Do not include personal identifiers such as social security numbers on the copy of the documents that you file with the court. Complete the forms, make a copy, and then redact the personal identifiers on the copies you will submit to the court. 
  2. Attach the filing fee or request a fee waiver:
    • One defendant: $50
    • Each additional defendant: $5
    • Service fee: You must pay a mileage fee for delivery of the court papers by a Special Civil Part officer. Court staff will tell you the exact mileage fee when you file your case. Payment can be made by cash or by a check payable to Treasurer, State of New Jersey.
  1. Check the forms to make sure they are complete. Sign the forms.
  2. For cases involving something other than non-payment of rent, include all notices that you have sent to the tenant and that you plan to rely upon at the trial.
  3. Make copies of all of the documents you will submit to the court and put one copy in a safe place. You will need a copy for yourself and two copies for each tenant named as a defendant in your complaint.
  4. Check that you have redacted the personal identifiers on the copies you prepare for court.
  5. Mail or deliver the complaint, the summons, the certification and the fee to the Superior Court where the rental property is located.

Once your case is filed you will receive a postcard with information about the date and time of your trial.

Preparing for Trial

What to bring

Documents:

Bring to court all records that will help you prove your case, such as:

  • rent receipts, estimates, repair bills;
  • dishonored checks from the tenant(bounced checks);
  • letters and notices to, or from, the tenant(s);
  • photographs; and
  • any other documents that you believe will help you defend the case being made against you.

**Photographs, emails and text messages must be printed before you come to court.

Witnesses:

You can bring witnesses to help you prove your case; the court will not accept a written statement signed by a witness.

If you are coming to court without a lawyer, you will have to question your witnesses. Prepare any questions you will ask your witnesses before you go to court.

What to expect at the trial:

  1. If you do not come to court, the case will be dismissed.
  2. If the tenant does not come to court, the case probably will be defaulted in your favor.
  3. If you both come to court, you and the tenant could be asked to work with a mediator to try to settle your case.
    • If you and the tenant come to an agreement, the mediator will complete the appropriate form. The judge must review and approve the forms before the court will accept your agreement.
    • OR
    • If you do not come to an agreement, the judge will hear your case. The judge either will grant or deny a judgment for possession. A judgment for possession is the first step toward eviction.

Common Defenses in Eviction Cases

There are many ways that tenants can defend themselves in eviction cases. Both tenants and landlords should research these issues in order to prepare for court.Legal Services of New Jersey has a helpful website to get you started.

Some Common Defenses

Habitability

A rental property must be “habitable,” meaning that people can live in it safely and comfortably. In New Jersey this is also called the Marini Doctrine. Common problems that affect habitability:

  • Lack of heat
  • Mold, bedbugs, or rodents
  • No running water, no hot water, or a toilet that doesn’t work
  • Lead paint, broken windows, unfinished floors
  • Broken appliances such as a stove or a refrigerator
  • Unsafe common areas such as a lobby, stairs or elevator
  • Anything else that makes it hard for a tenant to live there normally.

A tenant might withhold rent because of a habitability issue. But habitability cannot be used to avoid eviction for a pattern of late rent payments, noise or pet violations, or any other reason the landlord might give for an eviction.

To make a habitability defense, a tenant must:

  • Be able to pay the full amount of rent due on the scheduled court date. They might be asked to give the rent money to the court to hold until the case is over.
  • Be able to show the court, with photos or other evidence, that some part of the living space is uninhabitable.
  • Be able to show the court that they told the landlord about the problem and gave the landlord a chance to fix it.
  • Be able to show the court that they are not the cause of the issue. If the tenant broke the window, for example, that cannot be the reason for not paying rent.

Unregistered Rental Property

The property might not be registered as a rental property. If the landlord lives on the property and there are three units or fewer, the property must be registered with the Community Development Authority.

If the landlord does not live on the property OR the property includes more than three units, the property must be registered with the Bureau of Housing Inspection.

The case might be dismissed if the landlord cannot prove that the property is registered. The judge could also decide to delay the case to give the landlord time to register the property.

Illegal Tenancy

A tenant could argue that the tenancy is illegal. Reasons could include:

  • The property is condemned.
  • There are zoning violations. For example, the property has been divided into more units than it was approved to have.
  • The property violates other laws. For example, it might be in a basement with only one escape route.

Abatement

The judge court decide to give the tenant an “abatement,” meaning the tenant does not owe the full amount of the rent because of a problem with the property. For example, the tenant is paying for a 2-bedroom apartment but one of the bedrooms has no windows and is not a real room.

Section 8 Subsidized Housing

A landlord cannot evict a tenant without first telling any public agencies that subsidize the tenant’s rent. The landlord must attach proof of this notice when the eviction complaint is filed with the court. The case could be dismissed if the landlord did not notify the agency about the case.

Mediation

It is important for you to come to your scheduled court date. Even if you think that you will lose your case, you might be able to work out a settlement through mediation.

Mediation is often the best solution, because it allows both parties the chance to compromise. Through mediation, each party can get something that they want out of the case. For example, even if a tenant is facing eviction, the tenant and landlord might be able to work out a plan that will give the tenant more time to move out.

A court mediator can work with both the landlord and tenant to come to an agreement. If they agree on a settlement, the mediator will help them submit the correct form to the judge.

If the judge approves the settlement, the case is over and the landlord and tenant can move forward.

You have nothing to lose by trying to settle with the other party.

If the landlord and tenant do not come to an agreement, the judge will hear the case.

Judgments for Possession/Warrants of Removal

If a judgment for possession is entered, the landlord can take steps to have the tenant evicted. If the tenant does not leave the home, a court officer, not the landlord, will serve the tenant(s) with a warrant of removal. When tenants are served with a warrant of removal , they must leave the home within three business days. If they do not, the landlord can ask the court officer to evict them.

After Judgment for Possession

There are still things that a tenant can do after the court date that could change the terms of the eviction. The tenants must notify their landlord if they decide to pursue any of these actions with the court:

  • Tenants can request an Order for Orderly Removal, which grants them more time to move out. This could give them up to seven calendar days to move.
  • They can request a hardship stay. This could stop the eviction for up to six months. Tenants cannot apply for a hardship stay unless they pay all the money they owe to the landlord, plus any costs. If they pay all the money they owe and they are granted a hardship stay, they must still comply with the original lease and pay all of the rent during the stay.
  • Tenants also can apply to the court to vacate (cancel) the judgment for possession. This request is not granted often and requires unique legal circumstances.

Illegal Evictions (Lockouts)

How to File for the Return to Your Rental Premises

A landlord cannot evict tenants or remove their belongings from a rental home without first getting a judgment for possession and then a warrant of removal from the court. Only a Special Civil Part officer can perform the eviction on behalf of a landlord.

It is illegal for the landlord to force a tenant out by changing the locks, padlocking the doors or by shutting off gas, water or electricity.

A landlord also cannot take possession of a tenant’s personal belongings or furniture to try to force them to pay rent. Tenants who have been locked out of their home illegally can file a complaint at the county courthouse. In the complaint, the tenant can request to be allowed back into the home. They also can request monetary damages.

Residential Security Deposit

Maximum security deposit is 1 ½ months’ rent.

In New Jersey, a landlord can only charge up to 1½ months’ rent as a security deposit. The landlord requires the security deposit in order to pay for any damage done to the unit or to cover unpaid rent after the tenant leaves. The landlord must deposit the security deposit into an interest bearing account within 30 days of receiving the money from the tenant.

Security deposit must be kept in an interest-bearing bank account.

The landlord must notify the tenant in writing, within 30 days of receiving the deposit, the following information:

  1. The name and address of the bank where the money has been deposited.
  2. The amount of the deposit.
  3. The type of account.
  4. The current interest rate of that account.

The landlord must send the tenant an updated statement providing the same information on an annual basis, or within 30 days if

  • The deposit is moved to another account or bank;
  • The bank merges with another bank; or
  • The rental property is sold.

The interest must be paid or credited to the tenant each year.

The landlord must either pay you the amount of the annual interest in cash, or must credit the amount of the annual interest toward the payment of rent.

The security deposit cannot be touched until the tenant moves out.

The landlord cannot deduct any money from a tenant’s security deposit until after the tenant moves out of the home. If the landlord wants to use the security deposit to pay for damage or for unpaid rent, they must notify the tenant in writing within 30 days after the tenant move out of the home. The tenant must provide the landlord with their new address so that the landlord can contact them about your security deposit.

If the tenant owes more money than the amount of the security deposit, or if the damage caused by the tenant was beyond normal wear and tear, the landlord can sue the tenant in court for the additional amount.

If the tenant believes they landlord kept all or part of the security deposit without good cause, the tenant can sue the landlord for security deposits up to $5,000 in the Small Claims section of Superior Court. Lawsuits for security deposits greater than $5,000 must be filed in the Special Civil Part of Superior Court.

For information on serving eviction papers, contact undisputedlegal.com or (201) 630-0114 Representative are ready to assist you, we serve all legal papers, call now!

Lease Agreement What You Should Know

By: Undisputed Legal/Eviction Service Department

A lease is a contract between a landlord and a tenant, containing the rental terms and conditions. It cannot be changed while it is in effect unless both parties agree. Leases for apartments that are not rent-stabilized may be oral or written. To avoid disputes, the parties may wish to enter into a written agreement. A party must sign the lease to be bound by its terms. An oral lease for more than one year cannot be legally enforced (General Obligations Law § 5-701).

At a minimum, leases should identify the premises, specify the parties’ names and addresses, the amount and due dates of the rent, the duration of the rental, the conditions of occupancy, and the rights and obligations of both parties. Except where the law provides otherwise, a landlord may rent on such terms and conditions as are agreed to by the parties. Both parties should initial any changes to the lease. 

New York City rent-stabilized tenants are entitled to receive a fully executed copy of their signed lease within 30 days of the landlord’s receipt of the lease signed by the tenant. The lease’s be- ginning and ending dates must be stated. Rent stabilized tenants must also be given a rent stabilization lease rider, prepared by DHCR, which summarizes their rights under the law and provides specific information on how the rent was calculated. 

Lease Provisions 

Leases must use words with ordinary and everyday meanings and must be clear and coherent. Sections of leases must be appropriately captioned, and the print must be large enough to be read easily. (General Obligations Law § 5-702; NY C.P.L.R. § 4544.) 

The following lease provisions are void: 

  • Exempting landlords from liability for injuries to persons or prop-
    erty caused by the landlord’s negligence, or that of the landlord’s
    employees or agents (General Obligations Law § 5-321);
  • Waiving the tenant’s right to a jury trial in any lawsuit brought by either of the parties against the other for personal injury or property damage (Real Property Law§ 259-c);
  • Requiring tenants to pledge their household furniture as security
    for rent (Real Property Law § 231).
    If a lease states that the landlord may recover attorney’s fees and costs incurred if a lawsuit arises, a tenant automatically has a reciprocal right to recover those fees as well (Real Property Law § 234).
    If the court finds a lease or any lease clause to have been unconscionable when it was made, the court may refuse to enforce the lease or the clause in question (Real Property Law § 235-c). 

Renewal Leases 

For non-rent regulated apartments, the landlord must agree to renew the lease, and a tenant may be subject to eviction at the end of the lease term. However, a lease may contain an automatic renewal clause. In such a case, the landlord must give the tenant advance notice of this clause’s existence between 15 and 30 days before the tenant is required to notify the landlord of an intention not to renew the lease. (General Obligations Law § 5-905). 

Rent stabilized tenants have a right to a one or two-year renewal lease, which must be on the same terms and conditions as the prior lease, un- a specific law or regulation mandates less a change. A landlord’s acceptance of a Section 8 subsidy is one such term that must be continued on a renewal lease. Landlords may refuse to renew a lease only under certain enumerated circumstances, such as when the tenant is not using the premises as a primary residence. For New York City rent-stabilized tenants, the landlord must give written notice to the tenant of the right to renewal by mail or personal delivery, not more than 150 days and not less than 90 days before the existing lease expires. 

After the notice of renewal is given, the tenant has 60 days in which to accept. If the tenant does not accept the renewal offer within the prescribed time, the landlord may refuse to renew the lease and seek to evict the tenant through court proceedings. If the tenant accepts the renewal offer, the landlord has 30 days to return the tenant’s fully executed lease. Until returned to the tenant, the lease is not sufficient, and therefore, the rent increase portion need not be paid. 

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