New York Eviction Laws On Holdover Cases

Holdover Summary Proceeding – generally used to refer to any summary proceeding brought to evict on some basis other than for non-payment. 

Expiration or Termination of Lease – RPAPL §711(1) provides the fundamental authority for a holdover proceeding. It authorizes the maintenance of a summary eviction proceeding against a tenant who “continues in possession … after the expiration of his term without the permission of the landlord”. This applies to the tenant whose lease has expired by operation of law or because the lease has been terminated by operation of a conditional limitation in the lease—the terms of the lease control. The lease cannot be terminated for reasons other than those allowed under the lease (i.e., No termination for “objectionable conduct” unless there is a provision in the lease authorizing such termination. See Perrotta, 98 AD2d 1, 469 NYS2d 504; Levesque, 106 Misc2d 432, 430 NYS2d 482). 

Rent / Use and Occupancy – Petitioner may seek rent for a period before the end of the tenancy and U&O for the period respondent “holdover.” The amount of U&O is set by the Court but is generally set at the rent amount. 

Predicate Notices required in Holdover Proceedings – Before commencing a holdover proceeding, the petitioner must, in most instances, serve certain notices. As a general rule, a predicate notice dies when the holdover proceeding based on it is dismissed (However, some Courts allow a second proceeding based upon the same notice where the second proceeding is commenced before the first proceeding is dismissed). 

Notice to Terminate – The purpose is to terminate the tenancy and notify the tenant of the consequences of failure to vacate the premises. The Notice can be required by the lease, statute, or regulation. This Notice is required to terminate a tenancy at a time other than at the end of a definite rental term (with Section 8 or regulated housing, a Notice to Terminate is always required). The summary proceeding cannot be commenced until after the date outlined in the Notice for the tenancy’s termination. The timing for the Notice is governed by lease and/or statute. For tenancies with a lease, the lease must authorize early termination. The lease then governs notice requirements. The tenant is entitled to one month’s notice (as opposed to 30 days in NYC) (See RPAPL §232-b). Therefore, to terminate a month-to-month tenancy on May 31st, the Notice must be served by April 30th

The manner of service of the Notice is governed by lease or by statute. RPAPL § 232-b governs month-to-month termination notices outside of NYC and does not require that the Notice is in writing, nor does it specify how the Notice is served. 

The Notice must contain sufficient facts to establish grounds for the landlord to recover possession. For example, if the termination is based upon an alleged breach of a lease, the Notice must set forth the specific lease provision involved. It must set forth specific facts and not simply legal conclusions. It must advise the tenant of the date of termination of the tenancy; it must be signed by the landlord (or an agent known by the tenant or included in the lease); it must notify the tenant that if the tenant fails to vacate by the termination date, an eviction proceeding will be commenced; it must be unequivocal and unambiguous as well as sufficiently detailed; it cannot seek an increase in the rent and terminate the tenancy; it cannot give tenant both an opportunity to cure and terminate the tenancy.  

Notice to Quit-a a notice to an occupant of a dwelling unit that the occupant must leave or a summary eviction proceeding will be commenced by the owner, seeking a judgment of possession to remove the occupant. This notice is used where no landlord/tenant relationship exists (RPAPL § 713; i.e., a squatter or the licensee). 

This Notice must be served at least 10 days before commencement of the proceeding and must be served in “the manner prescribed in section 735″ (RPAPL § 713); same service as for a notice of petition and petition. The Notice must state the facts upon which the proceeding is based, including whether the occupant is a squatter or a licensee if known (See 349 East 49th Street Equities v Vought, 5/27/82 NYLJ 5, col.4 [App Term 1st Dept]). 

Notice to Cure – This is a notice to the tenant that tenant is in default of some obligation arising out of the lease. That tenant’s obligation must be met, or a summary eviction proceeding will be commenced. 

This Notice must afford the tenant a 10-day period to cure the condition alleged to constitute a default of the tenancy’s obligation. This Notice can be served personally or by mail (However, add five days from the date of mailing where service is by mail). The Notice must be specific and must advise that tenant has a specific time period to cure the alleged breach. It must be sufficiently specific to apprise the tenant of the condition that the landlord alleges default of the tenant’s obligations. The Notice must also clearly advise the tenant of what must be done to cure the breach, and it must inform the tenant of the consequences of failing to “cure” the condition alleged to be the breach. 

Yellowstone Injunction – A tenant may be able to obtain an injunction against the expiration of the cure period in the Supreme Court, where the “condition” to be cured cannot be cured before the period of time allowed in the Notice elapses. Such relief is not available in City Court (lack of jurisdiction to grant this injunctive relief). 

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