04:14:00 pm, by admin , 670 words
Eviction is a Legal Process. You the landlord CANNOT just call the police and have a tenant thrown out on the street because you want the tenant out. The tenant has the right to due process.
There are two (2) types of evictions:
A nonpayment eviction is an eviction for nonpayment of rent. Under New York State Law, a landlord seeking to evict a tenant for non-payment must first give the tenant a chance to pay, by giving the tenant a three-day notice in writing, stating that the tenant has three days to pay all the rent in full or the tenancy will be terminated.
A Holdover eviction is an eviction for remaining on the premises after the lease has expired or remaining on the premises after receiving notice that the lease has been terminated because of a breach of the lease agreement or after receiving notice that the landlord is terminating a month to month tenancy.
Regardless of the type of eviction, the procedure is mostly the same and begins when the tenancy is terminated. In a non-payment case the eviction can start after the three (3) day notice is given and no payment is made in three (3) days. The act of non-payment terminates the tenancy. The holdover eviction can start as soon as the tenancy is terminated because of breach, or after the expiration of the notice period in a month to month tenancy.
Once the tenancy is considered to be terminated the landlord may file in court for eviction. The landlord CANNOT go directly to the sheriff. The landlord must get a court order first. To get the court order, the landlord files a petition and obtains a hearing date. The hearing date MUST be no less than FIVE DAYS from the date of service of the petition on the tenant. The hearing date is required to be scheduled between five (5) and twelve (12) days after the tenant is served with the petition.
Service is made either by having a third party personally hand the petition to the tenant (or other type of personal service). If the tenant is avoiding service it may be made by nailing the petition to the door and sending a copy by mail (Nail and Mail). (Note: If service is made by nail and mail, and the tenant does not make a personal appearance in court, the landlord will be unable to get a money judgment on that day for the arrears in rent, however the landlord will get the warrant.)
The hearing is a summary proceeding. If the judge finds that the tenancy is terminated because of non-payment or for holdover the judge will sign a warrant of eviction. The landlord may also obtain a money judgment for the arrears due in rent if personal service was made or if the tenant makes a personal appearance in court.
Once the warrant is signed by the judge the landlord will then need to submit the warrant to the sheriff. The sheriff must give seventy-two (72) hours notice to the tenant before enforcing it. The landlord has no right to garnish wages without a money judgment. If the landlord does not get a money judgment during the eviction proceeding, he may sue the tenant in small claims court at a later date.
One other option for a tenant may be to file for bankruptcy. If the warrant of eviction was issued prior to the bankruptcy filing the eviction needs to be cured and future rent needs to be posteded with the bankruptcy court. In some cases, the filing of a bankruptcy case creates an automatic stay of the eviction proceedings against the debtor.
Landlords beware. The landlord tenant law in New York is heavily weighted in favor of the tenant. There are strict procedural rules and if the tenant shows up to court with the back rent money he will not be evicted for non-payment.
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