General Eviction Information for New York

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What is an eviction?

An eviction is a court process a landlord can use to evict a tenant from a rented apartment, house, or mobile home.

An eviction case, which lawyers call a Summary Proceeding, is started when the landlord has someone else serve the tenant with two (2) papers, the "Notice of Petition" (has the time, date, and place of court hearing) and the "Petition" (has the reason the landlord wants to evict the tenant). You must be served with both of these papers at least 5 days before the court date, and the court date can't be later than 12 days after you are served.

Just because a landlord starts an eviction case doesn't mean that the landlord will win. Tenants have certain rights, and there are several defenses to an eviction action.

If you have lived in a rooming house or hotel for at least 30 days, the landlord must use the eviction process to make you move.

Can my landlord evict me without going to court?

NO! The landlord must go to court, must win the case, and must get a court order called a "Warrant of Eviction". This is true even if you owe rent or your lease has ended.

It is a criminal violation for a landlord to illegally evict you by:

* Changing the locks,
* Padlocking the doors,
* Taking out your furniture or property,
* Removing the door of the apartment or house,
* Turning off the electricity or water,
* Doing anything else that keeps you out of your house or apartment (Real Property Law Section 235).

If your landlord tries any of these things, call the city or village police. If you live in a rural area, call your county sheriff or the State Police. Tell them that the landlord does not have a Warrant of Eviction, but has tried to throw you out anyway.

If you are told, "Sorry, that's a civil matter," don't give up. Ask for the officer's name and badge number. Then ask to speak to the officer's supervisor. Illegal eviction is a criminal violation under Real Property Law Section 235. If the police won't tell the landlord s/he is violating the law, call a lawyer. If the landlord won't let you back in, it is possible to get (1) a court order telling the landlord what he must do, and (2) triple damages for any losses or costs caused by the illegal action.

When can I be evicted?

Written Lease: If you have a written lease, you can only be evicted if:

* The lease is up, or

* You owe rent, or

* You have seriously violated the terms of your lease.

Your landlord must prove in court that any of these are true.

Month-to-Month Tenant: If you don't have a written lease, and you pay rent on a month-to-month basis, you can be evicted only if:

*You owe rent, or

*You were given a month’s notice to move out.

Again, the landlord must prove in court that you owe rent or you got a termination notice and had a full month to move out.

Special Protections

If you live in public housing also called "HUD housing" or "Section 8 housing", there are special rules for evictions. Read any notices you get carefully. See our flier on these programs, and be sure the call a lawyer if you get court papers.

 

How do I defend myself in an eviction?

Your defenses depend on the reason for the eviction action. The reason for your eviction must be written on the Petition.

"Non-Payment Case": If any of these apply, tell the judge:

* Your landlord did not demand the rent from you, either verbally or in writing.
* You paid the rent. Bring proof (receipt or witness) to court.
* You are holding back the rent because the landlord won't make repairs. (See our flyer "When a Landlord Won't Make Repairs" before withholding rent.) Bring a copy of the housing inspector's report, photos, and any other proof.
* The Department of Social Services is holding back the rent because the landlord won't make repairs. Bring a copy of the notices from your worker.
*You offered the rent, but the landlord refused to take it. Bring the rent money to court. If you offer the full amount of rent owed plus costs, even as late as the day of court, you should not be evicted.

"Holdover Case" (when the landlord says your lease is up or s/he wants you to leave regardless of whether you owe rent): Tell the judge if any of these apply:

* You are a month-to-month tenant, but were never given a month's notice.
* The landlord gave you proper notice, but did it because you complained about poor conditions or called the housing inspectors (see our flyer "Retaliation" for more information). Again, bring a copy of the housing inspector's report to court.

There are also very specific rules for how your papers have to be served. Many mistakes landlords make should result in the case being dismissed, according to the law.

 

Should I go to court?

If you are served with eviction papers, you should probably go to court. Even if you agree with what the landlord says, you can still ask the judge for extra time to move. If you don't go to court, you will probably get a 72 hour Warrant of Eviction. (If you own a mobile home in a mobile home park, the Warrant will be 30 days or 90 days).

Some lawyers will tell you that you should not go to court if you are planning to move anyway, you have no defenses, and you were not personally served with the court papers. This is because if you were not personally served with the court papers, and you don't go to court, the judge should not sign a money judgment against you.  A money judgment is a court paper which says you owe the landlord money.  The landlord can use the money judgment to try to collect money from you.

In our experience, judges in our area do sign money judgments even if you were not personally served and did not go to court. So, we usually tell people it is a good idea to go to court to ask for extra time or try to work out a deal with the landlord.  You can also fight to get the money judgment amount less than the landlord wants. 

What happens in court?

Be on time, or be early. Your case may be the last one called, or it may be the first one. If you are even a few minutes late, the judge may have already called your case and made a decision.  There are rules for how long the judge should wait, but you don't want to have to rely on those rules because you missed your hearing.

When your case is called, answer "Here, Your Honor" loudly and clearly. Go to the front of the courtroom. When the judge asks for your side of the story, briefly tell the judge the facts of your case and any defenses you want to raise. Be polite and calm, call the judge "Your Honor", and don't talk while someone else is talking. This can be hard when you are nervous or angry, but it helps your case. Show the judge any proof you brought to court with you.

The judge may decide the case right then, or may tell you to come back another day for a hearing. If the judge won't even let you talk, or won't let you raise any counterclaims, you can complain to the New York State Commission on Judicial Conduct. http://www.scjc.state.ny.us/

 

Counterclaims

You have the right to raise any counterclaims you have against the landlord in court. For example, if you have proof that there were serious bad conditions in the residence, the court should hear your proof that rent should be reduced. A reduction in rent is called an abatement.  Unfortunately, some judges incorrectly think that you can't raise this defense if you owe rent.

 

The Decision

If the judge agrees with you, the case will be dismissed. You win, and do not need to move out.

If the judge agrees with the landlord, you will lose, and must move. You may also owe the landlord money. The judge gives the landlord a "Warrant of Eviction", which is the court order that allows you to be put out by the police if you don't move out. The judge decides if the warrant can be issued right away, or if it will be "stayed" for a while.

 

The Actual Eviction

On or after the day that the Warrant can be issued, you will be given a 72 hour (3 day) notice by a law enforcement officer. This is your warning that you have 72 hours to move. (30 or 90 days if you own a mobile home in a mobile home park).

The officer will come back after the 72 hours are over, not counting Saturdays, Sundays, or a holidays.  A warrant served on a Friday at noon will usually be executed on Wednesday at noon, for example. Check with the officer who gives you the notice to be sure of when he or she will come back. If you have not moved out, the officer can remove your property and let the landlord change the locks.

The landlord is supposed to store your property somewhere safe. Your property should not just be thrown out, or put on the curb. Also, your landlord cannot refuse to give back your property until you pay rent. If your landlord does any of these things, or even threatens to, call a lawyer right away. Although the law is not clear about how long the landlord must store your property, landlords often will try to throw away or sell the property after thirty days. If you have not contacted the landlord to get your property back, you may not be able to successfully sue the landlord for the value of your property.

If your property is put in storage, try to move it to your new home as soon as you can. If you wait over a month, you will probably owe storage fees. If a storage company has your property, they can demand that you pay them before giving you your things.

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(c) Legal Assistance of Western New York, Inc. ®

This article provides general information about this subject. Laws affecting this subject may have changed since this article was written. For specific legal advice about a problem you are having, get the advice of a lawyer.  Receiving this information does not make you a client of our office.

 

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