Evicting a tenant in New York requires you to follow a variety of legal procedures—and navigating them can be tricky. You also must remember that courts are very protective of a tenant’s rights. If you’re going to represent yourself as a landlord, you need to make sure you’re aware of the elements involved, so you can get it right the first time. The last thing you want is to do a great deal of work, only to be told to go home and start from scratch because you missed one of the steps in the eviction process.
Steps
Preparing for Eviction
- Determine the reasons you can evict a tenant. You need valid reasons (also known as “grounds”) in order to dispossess a tenant. There are several eviction grounds in New York. Some of the things a tenant might do that could be reasons for eviction are:
- Failing to pay rent
- Substantially damaging the property (such as ripping up flooring, or breaking windows).
- Significantly interfering with the comfort and safety of the landlord, or of other tenants or occupants of the same building or adjacent buildings (for example, constantly playing loud music, or discharging a firearm on the property).
- Using the housing for illegal or immoral purposes (like dealing drugs or engaging in prostitution).
- Violating the landlord’s policy on keeping pets.
- Refusing to give the landlord access to the premises for repairs or inspection.[1]
- Be sure to meet your responsibilities as a landlord. Under New York law, with every written or oral rental agreement you enter into, you warrant (guarantee) that the property will be free from any conditions which would be hazardous or detrimental to the occupants’ life, health, or safety. Some of the specific obligations are:
- Keep every part of the dwelling in good repair, and clean and free from vermin, garbage, or anything else dangerous to life or health.
- Make sure the interior walls of the public areas and tenant-occupied areas of a multiple dwelling (three rental units or more) are either painted or papered as often as needed to keep them in sanitary condition.
- Clean carpets and rugs in the public areas of a multiple dwelling at least once a year.[2]
- Try resolving the issue with the tenant before proceeding with eviction. Removing a tenant involves an expenditure of time and money that you’d like to avoid, if possible. Try talking with your tenant. Let him or her know that you want to settle the dispute out of court, but that you'll file for eviction if necessary.
- Decide who will serve (deliver) notices on the tenant. As the landlord/property owner, you’re not allowed to serve legal papers yourself. You’ll either have to hire a professional process (legal paper) server, or have a friend who is age 18 or older do it. (Provided the friend doesn’t serve more than five legal papers a year for you.)
- Be aware of the rules for properly serving (delivering) notices on the tenant. Unless otherwise indicated in the law, all written notices at any stage of the eviction proceedings must be served one of three ways:
- Personal service. The easiest way to serve the tenant is by having the papers handed to him or her personally. You can serve the tenant anywhere under this method, not just at home.
- Substituted service. The papers can be served on a “responsible” person who lives or works in the tenant’s home. This is someone who’s likely to give the papers to the tenant. It doesn’t have to be an adult, but obviously shouldn’t be a small child either.
- Conspicuous service. The person serving the papers leaves the notices on or under the door, if no one's home. Before using this method, the server must try to find the tenant at times of the day when you know it’s likely the tenant will be home. If the server can't serve the papers either by personal or substituted service the first time, he or she must try again during a different time of day (same day or different day).
- Note that with both substituted service and conspicuous service, the person who served the papers also has to mail copies of them to the tenant by certified or registered mail and by regular mail. The mailings must be done by the next business day after the delivery of the papers.[3]
- Learn the permitted time frame for proper service of notices. Papers may be served between 6:00 a.m. and 10:00 p.m. They can’t be served on Sundays or on religious observance days if you know that the tenant is observant and won’t be home.[4]
- Serve a Rent Demand for evictions involving non-payment of rent. If you’re evicting the tenant for failure to pay rent (called a “non-payment case”), you need to issue a Rent Demand, informing the tenant that you want the rent paid, and that if payment isn’t made, he or she can be evicted.
- The Rent Demand must tell the tenant the months and amounts of rent that are owed.
- You can make the demand either orally or in writing. (Check the lease to see if it requires a written Rent Demand.) If it’s a written demand, you can't start the eviction case until at least three days after the tenant is served .[5] If the tenant pays the rent within the three day period, you can’t proceed with the eviction.[6]
- Issue the proper notices if the grounds for eviction don’t involve non-payment of rent. Landlord-tenant cases seeking eviction for something other than non-payment of rent (called “holdover cases”), require that you do the following:
- If the tenant has done something that isn’t allowed by the lease (like having a pet), you must serve the tenant with a written notice called a Notice to Cure. This notice tells the tenant what he or she is doing wrong, and gives the tenant 10 days to fix the problem.
- If the tenant doesn’t correct the problem by the deadline in the Notice to Cure, you must serve a second written notice called a Notice of Termination before you can start a case. The purpose of this notice is to end the tenancy.
- The Notice of Termination tells the tenant the reason for the termination, the date the tenant must move out, and that a case will be started if the tenant isn’t out by the deadline.
- If the tenant pays rent weekly, give the tenant at least seven days notice to leave.
- If the tenant pays rent monthly, give at least 30 days notice to leave.
- The date by which the tenant must leave must be the last day of the rental period. For example, if the tenant pays rent on the 15th of every month, the last day would be the 14th of the month.[7]
- Give a Notice to Quit to someone living on the property without your permission. This notice has to be served on the illegal occupant; must tell the individual or individuals that they are living at the premises without your permission; and has to inform the occupant that he or she has 10 days to move out. If the occupant doesn’t move out by the deadline in the notice, you can start a holdover case.[8]
Filing the Eviction Complaint
- File (start) the complaint in the appropriate court. Eviction cases must be started in the court where the property is located:
- If you’re in New York City, you start the complaint in Housing Court. You can find Housing Court addresses and contact information here.
- If you’re outside of New York City, the complaint will be started in a District Court, City Court, Town Court, or Village Court, depending on the property location. For more information on where to start the case outside New York City, you can check here.
- Obtain the proper forms. To file an eviction complaint, whether for a non-payment case or a holdover case, you’ll need a Notice of Petition, a Petition to Recover Possession of Real Property, and an Affidavit of Service. The forms are slightly different for each of the two types of cases. You can get those forms on the New York Courts website here.
- The Notice of Petition basically advises the tenant that the case has been filed, says what you’re asking for, and provides information as to the court location and the court date (which the court clerk will give you).
- The Petition to Recover Possession lays out the reasons why the case was filed. It also contains information such as when the tenancy started, and when the tenant was supposed to vacate. You’ll also be permitted to request payment of rent arrears, interest on the arrears, and any court costs you paid.[9]
- The Affidavit of Service indicates how the notices were served on the tenant.
- In the Notice of Petition and Petition to Recover Possession, you have to list anyone living in the premises who’s 18 years of age or older.
- Both the Petition to Recover Possession and the Affidavit of Service must be notarized. The Notice of Petition doesn’t have to be.[10]
- Take the completed papers to the court for filing. Bring the original Notice of Petition, Petition to Recover Possession, and Affidavit of Service. Call the court clerk in advance to find out what the fee is for filing the papers. When you go to the clerk’s office, you’ll be assigned an index number that identifies your case.
- Be sure to attach copies of the notices you served on the tenant (referenced in Part 1, above) to the Notice of Petition and Petition to Recover Possession.
- You’re going to have to serve the tenant with the documents you just filed. The court date won’t be less than five days, or more than 12 days, from the date the tenant is served with those papers.[11]
- Serve copies of the filed eviction documents on the tenant. You’ll follow the same service rules that applied when you served the initial notices.
- Once you serve the papers, you must bring back the original Notice of Petition and the Affidavit of Service to the clerk’s office within three days of the hand delivery or mailing of the papers.
- Bring stamps for postcards with you to give to the clerk. He or she will mail a postcard to the tenant confirming that you started a court case.[12]
Attending the Hearings
- Plan on taking part in two hearings. If you don’t resolve your case with your tenant, you’re going to have to go to hearings in two separate parts of the court.
- The first hearing takes place in the Resolution Part. This is where you and the tenant will sit down with a judge or a court attorney, who will attempt to settle your case.
- The second hearing will be in the Trial Part. This happens if you don’t resolve your case in the Resolution Part. Your trial may be held that day, or you may be asked to come back for a later court date.[13]
- If you settle your case at any time during your court appearance, you and the tenant will sign a Stipulation of Settlement which lays out the terms of your agreement. The judge will review this with you and the tenant to make sure everyone understands the terms.[14]
- Prepare your witnesses. Plan on having anyone who can back up your case accompany you to court, such as someone who may have seen the tenant commit any acts that violated the terms of the lease (like damaging the property). Review their testimony with them in advance to make sure all the facts are accurate.
- Request an adjournment if necessary. If any of your key witnesses is unavailable for the court date, or if you have another valid reason why the hearing needs to be postponed (like needing an attorney), you should alert the court clerk as soon as you arrive in court. However, the court is under no obligation to postpone the case for you.
- Try to observe some landlord-tenant cases before your hearing date. Call the court to see when landlord-tenant cases are being heard, and go to the courthouse to see what's involved. That way, you'll have a better idea of what to expect at your own hearing.
- Be sure to bring all the evidence needed to support your case. Make a checklist of everything you’re planning to bring, and review the checklist before going to court. Some of the items you should include are:
- Proof of service of notices, the lease (if applicable), and any documentation (including any correspondence between you and the tenant), photos, or other proof to back up your claim for eviction and any money damages (such as overdue rent).
- Bills for labor and materials for any work done to the property, if the tenant is claiming that you failed to make needed repairs.
- Housing inspection reports, if applicable
- Your Multiple Dwelling registration, if the property is a three-family house or larger.[15]
- Get to court early. Try to arrive at least 45 minutes early, so you can find out where your case is on the court’s list (also called a “docket”). If you can’t resolve your case, and it goes to trial, the judge will hear the evidence and decide whether to grant you a judgment for eviction, which may include a provision for payment of overdue rent if you requested it. The court will provide you with a written copy of the judgment.
Following Up After the Hearing
- Consider appealing the decision if the judge rules against you. If you don't win your case, you have 30 days to appeal the result. You’ll need to order a transcript of the trial.This is a typewritten document that contains everything, including testimony, that happened in the trial. You can obtain this from the transcription service for the court where the case was heard. The court clerk can give you contact information for requesting the transcript.[16]
- The 30-day appeal period starts to run from the date of the service of a Notice of Entry. This is a form that indicates a judgment was entered.The winner of the case must serve the Notice of Entry, together with a copy of the judgment, on the losing party. (You can find a copy of the form here.)
- The Notice of Entry can be served by regular mail, and must be served by someone (not involved in the case) who is 18 years of age or older. The person mailing the documents must complete an Affidavit of Service, which must be notarized. A copy of the affidavit is available here.
- Return the Notice of Entry, Judgment, and Affidavit of Service to the court, keeping a copy for your records.[17]
- Request a Warrant of Eviction. If you win your case, this is the form that allows a constable, marshal or sheriff’s officer to remove the tenant from the property. This document can be obtained from the court, and needs to be signed by a judge. Either the judge will fill it out, or he or she will give it to you to fill out and bring back to the court for the judge’s signature.[18]
- Provide the appropriate law enforcement officer with the Warrant of Eviction. Only a constable, marshal, or sheriff’s officer can remove the tenant. Which of these you’ll use depends on where the property is located. The court clerk can provide you with the necessary contact information.[19] When you get in touch with the officer, be sure to ask what his or her fee will be.
- Once the officer receives the Warrant of Eviction, he or she will serve a Notice of Eviction on the tenant. This advises the tenant that the officer will be evicting him or her from the property.
- The officer will serve the Notice of Eviction the same way you served the original notices in the case (personal service, substituted service, or conspicuous service).
- If the Notice of Eviction is given by personal delivery, the officer may evict, without further notice, on the fourth business day after the date the notice was given, or on any business day after that. (Business days are Monday through Friday except legal holidays.)
- If the Notice of Eviction is given by substituted delivery or conspicuous delivery, the officer may evict, without further notice, on the sixth business day after the date of the notice, or on any business day after that.[20]
- Follow up with the officer. You may want to be present when the tenant is removed. Contact the officer to find out when he or she is planning to arrive at the property, and if it’s okay for you to be there.
- You’ll be able to change the locks once the rental property is cleaned out.
- The officer is authorized to physically remove the tenant, and oversee removal of the tenant's personal property, if the tenant hasn’t already removed his or her belongings.[21]
- Store the tenant's property if the tenant left it in the premises. New York law doesn’t specify how long you have to keep it, but 30 days is a common time period. There are certain things you might want to do to protect yourself from any later complaints by the tenant about your handling of the personal property:
- Take an inventory of the property.
- Let the tenant know (assuming you have contact information for the tenant) when and where the property can be picked up, and indicate that after 30 days you’ll consider the property to be legally abandoned, and will sell it. It's probably best to do this in writing if you have a forwarding address for the tenant.
- Sell the property at a public sale when the 30 days has expired, after providing notice of the sale in a local circulation newspaper, and notifying the tenant of the sale (again,in writing if possible).
- If the tenant owes you money for back rent, property damage, or reasonable storage costs, you can deduct the balance from the sale proceeds if the tenant's security deposit doesn't cover that amount. Consider holding aside any excess money from the sale for a year before retaining it for your own use, in case the tenant later tries to claim it.[22]
Tips
- If the premises is public housing also called "HUD housing" or "Section 8 housing", there are special rules for evictions. You can find these in your Section 8 contract.[23]
- It's probably advisable to put your Rent Demand in writing to assure you have proof that the demand was made. If you make the demand orally, and the tenant denies ever receiving the demand, you'll need to give testimony to the court to prove you made the oral demand.[24]
- In a holdover case, if the tenant never had a lease, and is supposed to pay you weekly or monthly, you’d serve the tenant with a Notice of Termination. In this situation, you don’t need a Notice to Cure.[25]
- If you have a friend serve the legal notices for you, you can accompany the person. Just be sure you don’t hand the papers to the tenant yourself.[26]
- Whenever you serve any legal papers (such as notices to the tenant) by certified or registered mail, always get a return receipt. This is your proof that the mail was sent, if for some reason the tenant refuses to accept or pick up the certified or registered mail.
- If, after receiving the Rent Demand, the tenant moves out of the rental unit, you can still sue the tenant for unpaid rent if the tenant doesn’t pay it before moving out.[27]
- Every person living on the premises (who is 18 years of age or older) that you list in the court papers must be served with his or her own set of all the legal papers, including papers that are served by mail.[28]
- In the Notice of Petition, Petition to Recover Possession, and Affidavit of Service, the landlord is called the Petitioner, and the tenant (and everyone living on the premises who is 18 years of age or older) is called the Respondent.
- The person listed as the Petitioner is the one who has to appear in court.[29]
- If the tenant owes rent and asks for a second adjournment of the eviction case, or if the case has been in court for more than 30 days, you can ask the judge to make the tenant deposit the overdue money in court.[30]
- If you have a Stipulation of Settlement, it can contain a judgment against the tenant. That way, if the tenant doesn’t do what he or she promised as part of the settlement, you can evict the tenant without having to go back to court.[31]
- If you won the case, and the tenant appeals the court’s decision, it doesn’t automatically stop the eviction. In order to do that, the tenant must file what’s known as an Order to Show Cause. This would request that the court stop the eviction proceedings while the appeal is in progress.[32]
- If the tenant doesn't appear for the hearing (defaults), in all likelihood you will be granted the judgment for eviction.[33]
- The court has the right to allow the tenant to stay on the property for up to six months after a judgment has been issued. This is conditioned on the tenant paying rent for the "use and occupancy" of the property during that time.[34]
Warnings
- The fact that a tenant may owe you rent doesn’t relieve you of your obligation to make necessary repairs to the property.[35]
- If you attempt to put a provision in a rental agreement waiving your obligation to keep the property in good repair, the courts won’t honor the provision. It’s automatically void.[36]
- If the legal notices in a case aren’t served the right way, the judge can dismiss your case and make you start the process all over.
- It’s a criminal violation for a landlord to illegally evict a tenant by:
- Changing the locks
- Padlocking the doors
- Removing the tenant's furniture or property
- Removing the door of the apartment or house
- Turning off the electricity or water, or
- Doing anything else that keeps the tenant out of the house or apartment.[37]
Sources and Citations
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