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De-Mystifying The Eviction Process

De-Mystifying The Eviction Process

Frequently Asked Questions

Disclaimer – Please be advised that the below Frequently Asked Questions FAQs and Responses are merely intended for general information purposes only and not intended as legal advice on any particular matter. The responses do not apply to every matter or situation and therefore should not be relied upon as your matter may have a nuance not contemplated below. If you have any particular questions, you should consult any attorney to best advise you as to the specific answers to your questions. The information you obtain at this site is not, nor is it intended to be legal advice. You should consult an attorney for individual advice regarding your own situation. The selection of an attorney is an important decision.

Why do landlords start eviction cases?
Landlords start cases to collect rent and to evict tenants.
What is a nonpayment proceeding?
A court case started by the landlord to collect unpaid rent and to evict the tenant if the tenant cannot pay the rent that is owed.
What is a Holdover?
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 nonpayment of rent.
What is an HP Proceeding?
This is a court case usually started by a tenant and to have a landlord make repairs to an apartment.
How are commercial landlord tenant cases different than residential landlord tenant cases?
In general, the procedure for commercial landlord tenant cases is the same as for residential landlord tenant cases. Commercial cases are returnable in the Part 52 courtroom. Commercial cases are presided over by the Civil Court Judges.
Are there any special considerations when a landlord terminates a commercial tenant's lease?
A commercial tenant can potentially seek to have the case placed in Supreme Court by filing a “Yellowstone Injunction.” Usually the fees associated with litigation in Supreme Court are higher than Landlord Tenant Court and the Supreme Court litigation is usually slower.
Why do tenants start cases in Housing Court?
Tenants start cases in Housing Court to get repairs, move back in after an eviction, or to stop harassment by the landlord.
What can a Housing Court Judge can order?
A Housing Court Judge can order: (1) payment of rent, (2) a tenant out of an apartment, (3) a tenant back in an apartment, (4) repairs, and (5) money due on counterclaims.
How much time does it take to evict a tenant?
On average, the eviction process in Queens County may take between six to nine months to complete. It depends on what type of legal defense the tenant has and whether a judge allows delays filed by the tenant.
What are the possible outcomes for a landlord that brings an eviction case?
Generally, the possible outcomes of an eviction case are: (1) a judgment, (2) dismissal, or (3) discontinuance.
What is a judgment?
A judgment is the final decision of the judge. It is a determination of the rights and obligations of the parties. In a given lawsuit, a judgment may direct a dismissal of the lawsuit, order payment of a money amount, or a direct one or more of the parties to do an act.
What can a landlord do if the tenant has stopped paying rent?
If a tenant has stopped paying rent a landlord can start a nonpayment case. First, the landlord must make a rent demand. If the tenant doesn’t pay, the landlord can start a case in court.
What can a landlord do if there is a person living in the apartment who was invited to stay by the former tenant before the tenant moved out?
If there is someone living in the premises that started living there with the tenant’s permission before the tenant moved out, that person is a licensee. A landlord can start a licensee holdover case. First, the landlord must serve the licensee with a notice to quit. If the licensee doesn’t move out, the landlord can start a case in court.
What can a landlord do if there are people living in the premises that moved in without permission from the landlord or anyone else?
If there are people living in the premises who moved in without the landlord’s permission or without permission from anyone else, these people are squatters. A landlord can start a squatter holdover case to evict them. First, the landlord must serve each squatter with a ten day Notice to Quit. If the squatters don’t move out, the landlord can start a court case.
May a Landlord sue for money and possession of the subject premises at the same time?
If a Landlord is seeking to obtain possession, usually possession of the subject premises is obtained separately or prior to obtaining a judgment. A collection case may be commenced after the tenant is out of possession. If the court awards the petitioner a possessory judgment, then a warrant of eviction may issue. The judgment may include rent due, and if no rent is due while the respondent is in possession, the fair value of use and occupancy of the premises.
Should a Landlord apply the security deposit to a tenant's unpaid rent?
No. Generally the courts will make it difficult to replace security.
Can a landlord obtain legal fees and late fees?
A judgment may also contain an award of legal fees to the winning party. Generally, each party in a law suit is responsible for its own legal fees, unless there is an agreement or a statute which provides otherwise. If the lease between the parties provides for an award of legal fees to the landlord for the tenant’s failure to perform any agreement in the lease, the tenant also has the same right to collect an award of legal fees for his or her attorney.
Can a landlord change a tenant's locks to force the tenant to move?
No. This is called an “illegal lockout” and landlords may be subjected to treble damages and potential criminal proceedings.
May a landlord turn off essential services such as the heat, water or electricity to force the tenant to move?
No. This is generally called a “constructive eviction.” Landlords may be subjected to treble damages and potential criminal proceedings.
May a landlord change the locks on a tenant's apartment in order to lock out a tenant?
No. This is called an “illegal lockout” and landlords may be subjected to treble damages and potential criminal proceedings.
May a landlord change the locks in order to lock out squatters?
No. This is called an “illegal lockout” and landlords may be subjected to treble damages and potential criminal proceedings. However, if those individuals have been in the subject premises for less than 30 days, you may notify the police department for possible assistance.
What is service of process?
The delivery of copies of legal documents to the defendant or other person to whom the documents are directed. Legal documents which must be served include a summons, complaint, petition, order to show cause, subpoena, notice to quit the premises and certain other documents. The procedure for service of process is specifically set out in statutes.
What happens if the legal documents are not served the right way?
If you don’t serve the tenant the right way the Judge may make you start all over again. The case may be dismissed without prejudice to you starting over.
May a landlord/owner serve the legal papers personally?
The landlord/owner can’t serve the legal papers because a person having a direct interest in a legal matter, transaction or proceeding can’t serve their legal papers. The landlord should have a process server deliver legal papers.
What if there are other people living in the home?
Every adult that is listed in the legal papers must be served with his or her own set of the legal papers. This includes any legal papers that are mailed.
What happens if the tenant never picks up the certified copy of the legal papers from the Post Office?
The Court considers the legal papers served whether the tenant picked up or the certified mailing or not, as long as the rest of the rules were followed.
Why is a predicate Demand or Notice necessary for a landlord to start most landlord tenant cases?
The law requires a landlord to serve a tenant with a Demand or Notice prior to filing a case in court. The landlord’s case may likely be dismissed without a proper predicate Demand or Notice.
What is a Petition?
A Petition in special or summary landlord tenant proceeding is a legal paper like a complaint filed in court and delivered to the tenants and occupants stating what the landlord requests from the court and the tenants and occupants.
What happens if a tenant doesn't answer the legal papers or a landlord or tenant misses the court date?
If a tenant does not answer the court papers or misses a court date, the landlord could win a judgment which could result in an eviction. To ask the court to stop the eviction and reopen the case the tenant must have both a good reason for not going to court when the tenant was supposed to and a good reason or defense why the landlord should not win the case.
In an eviction case, what happens if a tenant and a landlord can't agree?
They will have a trial. The landlord will have to prove the case. If the landlord can’t prove the case, it will be thrown out; if the landlord proves the case, the landlord will get a judgment against the tenant for the eviction.
What happens if a tenant doesn't answer the legal papers or a landlord or tenant misses the court date?
If a respondent fails to answer or appear in court, the petitioner is entitled to seek a default judgment. Unlike a nonpayment proceeding, the Judge will hold an inquest for the petitioner to prove his or her claims. The court will tell you when and where the inquest will take place; it may or may not be conducted in the Resolution Part. At the inquest, the petitioner will also be required to provide information as to the respondent’s military status. If the landlord proves his or her case, the judge will direct that a judgment be entered. A final judgment in a holdover proceeding provides for a possessory judgment and may also provide for a money judgment. If the money judgment is not timely paid, the respondent can be evicted. Even if the money judgment is paid, or if there is no money judgment, the respondent can be evicted if there is a possessory judgment. 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 landlords 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. Once the warrant issues, the marshal may evict the respondent.
What happens is if both the landlord and tenant (both sides) appear in court?
If both sides appear in court the case will be ready to proceed. A large number of holdover cases are settled in conferences which may include the petitioner, the respondent, and the attorneys for party, mediators, court attorneys, and at times even the Judge.
What is a stipulation of settlement?
If the case is settled, a stipulation of settlement will be written. The stipulation of settlement may provide for the issuance of a judgment and warrant if the respondent fails to comply with the conditions of the stipulation. 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. Once the petitioner has obtained a judgment and warrant of eviction based upon the stipulation of settlement, the marshal can evict the respondent.
In an eviction case, what happens if a tenant and a landlord can't agree?
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.
What is an Order to Show Cause?
An Order to Show Cause is a written request to bring the case to a Judge for a reason or reasons in the Order to Show Cause papers. An Order to Show Cause must be signed by a judge and will state the date, time, and courtroom for the court hearing.
Will an Order to Show Cause stop the eviction of a tenant?
A tenant may ask the court to issue an Order to Show Cause (OSC) and a Stay, an order staying, or delaying, the eviction until the issues raised by the tenant are addressed on a hearing date set by the court. If the marshal is served with a signed OSC that stays the eviction, he or she is legally bound by the directions of the court, but if the court does not stay the eviction, the marshal must go forward with it. Unless otherwise directed by the court, the marshal, after being served with an OSC that stays the eviction, must serve an additional notice of eviction by regular mail before conducting the eviction or legal possession.
What is a warrant requisition?
Once a judgment is obtained. A warrant requisition is the paperwork submitted to a city marshal in order to legally evict an individual.
How long does it take to obtain a warrant?
Warrants are issued by court clerks. Depending on the court and specific circumstances of the case, it may take from several weeks to several months to get a warrant issued.
What does it mean to get an "issuance" of a warrant of eviction?
The issuance of a warrant of eviction cancels the agreement under which the tenant held the premises and ends the relationship between the landlord and tenant. The warrant of eviction authorizes the sheriff or marshal to perform the eviction.
What is an eviction?
An eviction is the removal of a tenant and his or her “stuff”/belongings. The marshal sees that any entrance locks on the premises to which the tenant may have access are changed. Before a landlord can evict a tenant, a marshal must serve a marshal’s notice, also called a notice of eviction.
What is a "notice" of eviction?
A notice of eviction is a written notice from a marshal or sheriff warning a tenant that the tenant has move out.
What does it mean to have a marshal "execute" of the warrant of eviction?
Before executing the warrant of eviction the marshal must give notice in writing to the persons to be evicted. After providing notice, scheduling the eviction, and confirming the eviction with the landlord; the marshal may perform an eviction or obtain legal possession between the hours of sunrise and sunset, Monday through Friday, except on legal holidays.
What is the Purpose of the Re-service of the notice of eviction?
The purpose of the notice of eviction is to make sure that the respondent has adequate advanced warning of an eviction. If the notice becomes stale after delivery, it can no longer be used. Marshals are required to give an additional notice of eviction in two situations: (1) where thirty days have passed since the earliest eviction date specified by the previous notice of eviction and the warrant has not yet been executed; or (2) where a court order stays the eviction after service of the notice of eviction and the stay later expires or is vacated, unless the court specifically gives the petitioner permission to evict respondent without serving a new notice of eviction. In that situation the petitioner may evict without re-serving an eviction notice as long as the warrant of eviction is executed within three business days of the earliest date of eviction authorized by the court.
Are there Special Rules for Children, Mentally Ill, Handicapped, Elderly or Others?
The marshal is required to find out in advance if the premises are occupied by any individual unable to fend for themselves and if so, to notify the Department of Investigation before scheduling the eviction. The marshal must notify local police if unattended children are found at an eviction site. If, upon arriving at the premises, the marshal discovers that the tenant or any occupants of the unit are mentally ill, handicapped, elderly, or otherwise unable to care for themselves, the marshal must notify the Department of Investigation and the appropriate social welfare agency. The eviction must be postponed for approximately two weeks to give the appropriate social service agency an opportunity to provide assistance to such occupants.
What Property may be removed during an eviction?
The landlord may choose between having the marshal perform an eviction and having the marshal obtain legal possession. In both, the marshal returns control of the premises to the landlord. For an eviction, the marshal must hire a bonded moving company licensed by the New York State Department of Transportation, and must direct the moving company to deliver the items removed from the premises to a warehouse licensed by the Department of Consumer Affairs. In a legal possession, the tenant’s personal property remains under the care and control of the landlord until the tenant can arrange to transport the property to another location.
What if the marshal finds living animals in the premises?
If the marshal finds any living animals, he or she must notify Animal Rescue to remove the animals. The marshal is required to prepare a written inventory of all items contained in the premises of any tenant to be evicted.
What property may the tenant remove from the premises during an eviction?
If a tenant is present at an eviction, the tenant has the right to remove any property or valuables. Property can also be released to a relative, friend or neighbor, if the marshal is satisfied that the person has the authority to take the property.
What if the marshal finds money in the premises?
Money found and taken by the marshal must be left in the custody of the local police station or in the marshal’s office if delivery to the police station is not possible. After the warrant has been executed the marshal is required to notify the evicted tenants of the location of their property.
What items are not to be removed during an eviction?
The following articles are not to be removed from the premises: food, groceries, dishes encrusted with food, any fixture so attached to the realty that its removal will cause damage to the realty, rugs and wall-to-wall carpets which are firmly affixed to the floor, linoleum or tiles.
Steven Ben GordonReviewsout of 11 reviews
Steven Ben GordonReviewsout of 11 reviews