A New York Landlord’s Indisputable Rights

While the optimal landlord-tenant relationship is predicated on mutual respect for one another and the property that connects the parties, this ideal scenario isn’t always the reality.  Unfortunately, tensions can arise when either one or both parties fail to abide by rules that dictate the business of real estate rental.  In the discussion of the specialized area of landlord-tenant law and who is authorized to do what, the dialog largely centers on tenants to ensure their protection and fair treatment.  Despite this dominant focus, equal attention must also be paid to landlords whose livelihood depends on their ability to skillfully and professionally oversee rental transactions.  Like their tenants, New York landlords must understand both the laws that protects their well-being and what strategies to employ to ensure compliance with them.  An experienced attorney who is highly knowledgeable of the many complexities of New York landlord-tenant law is undoubtedly the most knowledgeable source of information for a landlord who wants to understand his indisputable rights.

 

Why Renting in New York is Unique

 

What’s often considered the status quo in residential rentals isn’t necessarily the norm in New York.  For example, the state’s high-cost of living has given way to rent control and rent stabilization regulations to ensure that individuals and families can afford to reside comfortably in it.  Landlords and tenants are each responsible for fulfilling the guidelines of these programs in properties regulated by them.  The eligibility requirements and terms of rent control and rent stabilization differ, so those looking for regulated housing must familiarize themselves with these conditions.  Both of these rental programs operate in Long Island municipalities.

 

Rent control

 

Rent control applies to residential buildings constructed before February 1947 in 51 New York municipalities that have yet to declare an end to the post-World War II housing crisis during which the country faced a residential property shortage.   The state of New York operates the oldest rent control program in the U.S., which limits the price a tenant can be charged for rent and specifies the services that a landlord must provide. Apartments in multi-unit buildings that are eligible for rent control must have either the same tenant or the tenant’s lawful successor, e.g., a family member, as a continuous resident since July 1, 1971.  These units become either rent stabilized once the residency is discontinued or deregulated if the building houses fewer than six units.  Apartments in either a one- or two-family house must have either the same tenant or the tenant’s lawful successor as a continuous resident since April 1, 1953.  These apartments are typically deregulated once residency is discontinued.

 

Rent stabilization

 

Alternatively, rent stabilized apartments are found in buildings constructed between February 1, 1947 and January 1, 1974 with either six or more units.  Tenants in buildings constructed before February 1, 1947 that feature either six or more units and who moved in after June 30, 1971 are also protected by rent stabilization laws.  Like rent control, rent stabilization specifies a maximum rental rate (and maximum annual rental increase) as well as entitles tenants to required services.

 

How an attorney can help

 

As these explanations of New York’s rental programs make clear, rent control and rent stabilization are just two regulations that uniquely position the state in discussions on landlord-tenant law. Furthermore, they contribute to the array of challenges a landlord could likely be expected to navigate when exercising his rights.  An attorney who understands landlord-tenant law specifically as it applies in New York can ultimately ensure that those rights are safeguarded.

 

What a Landlord Should Expect

 

A landlord should expect a tenant to remit payment for the property in which he resides in accordance with the dollar amount specified in either the rental agreement or lease he signed.  He should also expect that the property will be maintained at the same standard in which it was rented.   In addition, the signed rental agreement or lease should entitle a landlord to receive any required late fees assessed for tardy rent payments, explain how property repairs will be addressed and discuss the reasons for a possible security deposit deduction upon a tenant’s departure.  The rental agreement or lease protects a landlord and is intended to help avoid subsequent litigation once a tenant assumes occupancy.

 

Rental agreement v. lease

 

To be clear, a rental agreement and a lease differ.  The former generally establishes tenancy for a short period of time, e.g., one month, and can be automatically renewed as per both parties’ agreement; however, the terms and conditions, e.g., the rental amount, may change ongoing.  The latter typically obligates both parties to a longer period of time, e.g., one year, after which the lease can be renewed, renegotiated or declined.

 

The Right to Evict and the Importance of Legal Counsel

 

Removing a tenant from a rental property can be as difficult as it is anxiety-ridden whether the property is regulated or unregulated.  The two most common reasons that a landlord seeks to evict a tenant are failure to pay rent and refusal to vacate the premises once either the rental agreement or lease has ended.  A decision to handle eviction proceedings can present unexpected challenges and even cause legal setbacks if a landlord attempts to do so himself.  A consummate attorney can accept the onus of a tenant eviction even as he ensures that the process abides by New York laws.

 

Nonpayment Summary Proceeding

 

Not surprisingly, a landlord’s decision to evict a tenant is frequently the result of nonpayment of rent.  To collect these funds, he must first take a non-litigious approach verbally and/or in writing to demand the money owed.  A tenant’s failure to pay rent after verbal demand permits a landlord the right to file an eviction proceeding immediately; a written demand (which someone other than a landlord must present to a tenant) permits a tenant three days to pay before a landlord files a lawsuit to remove him from the premises.  This eviction proceeding, called a Nonpayment Summary Proceeding, is discussed under the New York State Real Property Actions and Proceedings Law, Section 711 (2), which says:

 

The tenant has defaulted in the payment of rent, pursuant to the agreement under which the premises are held, and a demand of the rent has been made, or at least three days’ notice in writing requiring, in the alternative, the payment of the rent, or the possession of the premises, has been served upon him.

 

According to the New York State Unified Court System for landlords doing business outside of New York City like in Long Island’s Nassau and Suffolk Counties, a landlord should only file a Nonpayment Summary Proceeding when he wants to exercise his right to evict a tenant.  If a landlord wishes to file a lawsuit to receive either unpaid rent or funds to repair damages that a tenant caused to a rental property but doesn’t wish to evict a tenant, then this is not the appropriate lawsuit to file.  An acceptance of a partial rent payment toward the total owed requires a landlord to make a new demand for the correct amount before he files a Nonpayment Summary Proceeding.  If a tenant remits all of the rent owed, then a landlord can’t file a Nonpayment Summary Proceeding.

 

An attorney can draft and file the two required court forms – (1) Notice of Petition: Nonpayment Proceeding and (2) Nonpayment Petition to Recover Possession of Real Property – to begin a Nonpayment Summary Proceeding on a landlord’s behalf after a tenant fails to meet his demand.  Improperly filing and/or serving a Notice of Petition and Nonpayment Petition can be costly and time-consuming, many times resulting in both the court’s dismissal of the case and a landlord’s need to start the process again.  Experienced legal counsel can ensure that these documents are correctly drafted and promptly filed to avoid additional financial loss.  A skilled attorney will also make certain a tenant is properly served by an experienced process server since, as when making a written demand for payment, a landlord can’t do so himself.  A Notice of Petition and Nonpayment Petition can be served through personal delivery, to a tenant substitute who may answer the door at his residence or by what’s called “nail and mail” in which the documents are either affixed to or slid under the rental residence door as well as sent via both regular and certified mail.

 

A landlord who files this lawsuit, referred to as the Petitioner, and his tenant, referred to as the Respondent, must appear in court in compliance with the date and time specified in the Notice of Petition.  The Petitioner’s failure to show could result in his lawsuit’s dismissal.  If the Petitioner appears but the Respondent doesn’t, then a default judgment for a Warrant of Eviction will likely be awarded in a landlord’s favor.  This judgment usually grants a landlord what he has requested if the court believes that a tenant was properly served and provided notice of the court date.

 

If both parties appear in court, then they are encouraged to try to settle the case and to reach an agreement outside of the court’s dictate; doing so requires that both sign a Stipulation of Settlement and present it to a judge. A Stipulation of Settlement, which a judge also signs, is a legally binding agreement that states that the parties will settle as the result of their mutually agreeable negotiation.  The court may also assign a mediator to the case rather than a judge to help the parties arrive at mutually consensual terms.

 

In those instances in which a landlord and tenant can’t reach a negotiation, the Petitioner will be required to present his evidence and to prove his case before a judge.  Evidence can include rental receipts, either the rental agreement or lease, and photographs of the property as well as witnesses.  An attorney is well able to assume this responsibility on his behalf, including the rebuttal of any defense the Respondent argues.

 

If a judge rules in a landlord’s favor, then he will have the right to remove the Respondent from the property and to reclaim possession of it.  The court may also mandate that a tenant pay some, if not all, of the rent owed.  A landlord must obtain a Warrant of Eviction from the court so that a sheriff, marshal, constable or other enforcement officer can remove the Respondent from the residence.  A landlord can’t evict a tenant himself and the eviction can’t occur until after 72 hours have passed following a tenant’s receipt of written notification of his eviction.

 

If a judge also requires a tenant to remit some type of monetary compensation to a landlord, then a landlord must first file this judgment with the municipal clerk and obtain an execution judgment prior to presenting the Warrant of Eviction to the enforcement officer.

 

A landlord must be aware that a tenant may seek to oppose the court’s ruling.  Common strategies include filing an Order to Show Cause, which requests that a judge re-open the case after a ruling in a landlord’s favor, or seeking an appeal to contest the court’s decision.  While these actions are within a tenant’s rights, an attorney can protect a landlord’s rights by working to uphold the judge’s decision in his favor.

 

Holdover Summary Proceeding

 

While a landlord might certainly want to exercise his legal rights when nonpayment of rent is an issue, his reasons for seeking a tenant’s eviction may be due to other concerns.  In particular, he may want to remove a tenant if the individual continues to reside at the property after either his rental agreement or lease has expired, i.e., after his right to occupy the residence has ended.  A landlord must first take a non-litigious approach by issuing a Notice to Terminate verbally and/or in writing.  A tenant’s failure to leave the rental property within one full rental property following the date he received the Notice to Terminate permits a landlord to file a lawsuit to remove him from the premises.  This eviction proceeding, called a Holdover Summary Proceeding, is discussed under the New York State Real Property Actions and Proceedings Law, Section 711 (1), which says:

 

The tenant continues in possession of any portion of the premises after the expiration of his term, without the permission of the landlord or, in a case where a new lessee is entitled to possession, without the permission of the new lessee.

 

A landlord may immediately begin a Holdover Summary Proceeding if a tenant doesn’t vacate the premises unless the terms of either the rental agreement or lease mandate that he receive additional notice before being required to leave.

 

(In addition, a Holdover Summary Proceeding can be enacted to remove non-tenants in instances in which no landlord-tenant relationship exists pursuant to New York State Real Property Actions and Proceedings Law, Section 713.  In these instances, occupants might include squatters, illegal subletters or previous owners prior to a foreclosure sale.)

 

As is true for a Nonpayment Summary Proceeding, the New York State Unified Court System specifies that a landlord doing business outside of New York City like in Long Island’s Nassau and Suffolk Counties should only file a Holdover Summary Proceeding when he wants to evict a tenant.  An acceptance of either partial or full rental payment enables a judge to decide if a new agreement or lease has taken effect, which could result in the lawsuit’s dismissal.

 

A knowledgeable attorney can draft and file the two required court forms – (1) Notice of Petition – Holdover and (2) Holdover Petition to Recover Possession of Real Property – to begin a Holdover Summary Proceeding on a landlord’s behalf after a tenant fails to leave the residence.  Improperly filing and/or serving a Notice of Petition and Holdover Petition may cause the court’s dismissal of the lawsuit and require a landlord to start the process again.  An experienced legal advisor will accurately draft and file these documents as well as ensure that they are properly served.

 

A landlord and tenant must appear in court in compliance with the date and time specified in the Notice of Petition.  The Petitioner’s failure to show could result in his lawsuit’s dismissal.  If the Petitioner appears but the Respondent doesn’t, then a default judgment for a Warrant of Eviction will likely be awarded in the Petitioner’s favor.  This judgment usually grants a landlord what he has requested if the court believes that a tenant was properly served and provided notice of the court date.

 

If both the Petitioner and Respondent appear in court, then they will be encouraged to reach a settlement before a judge intervenes.  The court may also assign a mediator to the case.  If the parties fail to reach a consensus, then a judge will decide the lawsuit.  At this time, the Petitioner may present evidence to validate his claim while the Respondent may present a defense to argue against it.  An attorney can cogently present a landlord’s argument for him.

 

If a judge rules in a landlord’s favor, then he will have the right to remove the Respondent from the property and to reclaim possession of it.  A landlord must obtain a Warrant of Eviction from the court so that an enforcement officer can remove him from the residence.  A landlord can’t evict a tenant himself and the eviction can’t occur until after 72 hours have passed following a tenant’s receipt of written notification of his eviction.

 

Like in a Nonpayment Summary Proceeding, a tenant may opt to file an Order to Show Cause to request that a judge re-open the case following a ruling in a landlord’s favor.  He may also seek an appeal to contest the court’s decision.  Again, a knowledgeable attorney can handle these matters on a landlord’s behalf.

 

Additional Rights: Entering and Vetting

 

Although a landlord may suspect damage to the rental property and wish to enter it to confirm its condition before a tenant moves, he doesn’t have the right to do so without permission.  While a landlord does have the right to enter a rental residence without a tenant’s consent in instances that require immediate attention, e.g., damaged pipes, only specific conditions in either the rental agreement or lease would otherwise grant him the right to enter without permission.

 

A landlord can avoid many of the pitfalls in which he might find himself if he thoroughly vets a potential tenant.  A landlord has the right to ask the hard questions to assess a prospective renter, like his rental history and proof thereof as well as the contact information for previous landlords.  In addition, a landlord can request copies of the individual’s driver’s license and recent paycheck stubs as well as require a credit check.  He should also learn how many people will reside in the rental property, if the individual has pets and if he smokes.  Acquiring this information before the landlord-tenant relationship begins can save both parties unnecessary stress and tension.

 

These rules about entering and vetting apply to all rental properties, whether they are regulated or unregulated.

 

Closing Thoughts

 

If and when the landlord-tenant relationship becomes strained, an attorney who possesses expertise in this special area of the law can help resolve matters as expeditiously as possible.  This kind of skilled guidance and counsel can alleviate the burden a landlord would otherwise incur and reassure him that his best interest is always of primary concern.  Landlord-tenant law protects a landlord’s rights, too, so retaining an attorney who understands it can prove invaluable.

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