In my law practice I handle a good amount of landlord and tenant work. I draft and review lease agreements, help property owners evict non-paying tenants, and help tenants defend against being evicted. In New York, there are set rules about how residential evictions are to handled. These rules can be confusing at first, but once you handle a few, the rules are relatively straightforward. You cannot cut corners when trying to evict a tenant. Even so, many landlords do exactly that, and I suspect that many of the landlords get away with it.
Like I said, I've represented both landlords and tenants over the years. The number one question asked by my landlord clients is "how can I get this done as fast as possible?" By the time the property owner calls me, they may have already tried working something out with the non-paying tenant and they are losing money. I usually have to spend a little time explaining the importance of playing by the rules to new landlord clients.
To describe the process in very general terms, a non-payment "eviction" case is called a "summary proceeding" in New York. Before the proceeding can start, the landlord has to send a 3-day notice to the tenant. This is a demand letter, essentially saying "pay me what you owe between now and three days from now, or I'm going to court". You cannot file the summary proceeding without first doing this, AND, the 3-day notice needs to be served not just mailed. This is probably the most frequent corner to cut in the eviction process. Next, if the tenant does not pay the amount due, the landlord can then file and serve the Notice of Petition and Petition in the summary proceeding. If, the tenant partially pays, then landlord either has to reject the partial payment or accept it and re-demand the balance with a new 3-day notice. Once the summary proceeding is started, the landlord has to have the tenant served no sooner than five days before the court date, and no longer than 12 days before the date.
Recently, I was contacted by a client who had a question about a document he received in the mail from his landlord. He had gotten a little behind in his rent, and received a 3-day rent demand by certified mail a few days prior, but now received in the mail a copy of a warrant to evict signed by a local judge. I was skeptical at first, thinking that he must have received some papers in between and ignored them, but after discussing it with him and reviewing the papers it became clear to me that the landlord either didn't know the eviction "rules", or cut corners to get around those. The local judge apparently didn't know the rules either and went ahead and signed a warrant of eviction without ever even having a formal summary proceeding before him.
I immediately called the court - a rural upstate court, and spoke to the judge. The judge did not know what I was talking about when I explained the summary proceeding process and how it appeared that the rules were disregarded by the landlord in this case. The landlord not only cut corners in not properly serving the 3-day notice, but completely skipped the summary proceeding and went right from demanding rent to getting a warrant of eviction. I then filed an order to show cause before the court and demanded that the warrant be vacated. My request was granted, and my client wasn't evicted, but if my client didn't question this he and his family would likely have been unlawfully evicted.
The landlord in this case wasn't a bad person - he just wanted his rent. My client shouldn't live for free, but my client never got the opportunity to respond to the allegation of non-payment. Maybe he had a defense to payment. Possibly the landlord misapplied the payments. The landlord could have been in breach of the lease - maybe there was damage to the property cause by the landlord or another tenant, for example. Maybe, as discussed above, my client made a partial payment under the mistaken understanding that the landlord was working something out with him. In fact, my client began to tell me about some of his defenses to non-payment, and I stopped him. It wasn't important to me at first, because the landlord blatantly disregarded the rules. I'm sure the judge wasn't a bad judge either, he just probably hadn't had a lot of summary proceedings in his court.
What happened is a classic example of the danger of cutting corners. The landlord lost and has to restart the eviction properly. Had the landlord invested the time and effort into properly serving the 3-day notice and properly commencing the summary proceeding, he would likely have removed my client and may have gotten a substitute tenant by now.
Now I have a good story to tell my new landlord clients who ask me to get an eviction done as quickly as possible.
No comments:
Post a Comment