FAQs About the Eviction Process
In New York, there are essentially two ways you can evict your tenant. And the method you choose depends on the reason WHY you want to evict your tenant. So first we have to ask, WHY do you want to evict your tenant? Is it because they have not paid the rent? Or is it because they have loud parties at 3am and they are causing a disturbance and even though they pay their rent on time, you just want them out?
If it is because they are not paying their rent, you want to bring a non-payment eviction proceeding, based on their failure to pay rent. In a non-payment proceeding, the landlord is primarily concerned with money. If the tenant shows up to court and pays all the back rent claimed by the landlord, the non-payment proceeding will be dismissed, and the tenant will be allowed to stay in the apartment. This is commonly referred to as, “pay and stay.” So keep that in mind, with a non-payment proceeding, your tenant has the option to pay & stay.
The second type of eviction proceeding is called a hold-over proceeding. A hold-over proceeding is when a landlord wants to evict a tenant even if they pay their rent on time. This eviction proceeding is based on any lawful reason other than the failure to pay rent and generally applies only to tenancies that are not for a term under a written lease agreement that has not yet expired. It is essentially for situations where you just want your tenant to leave, even if they pay the rent in full, you just want them gone, no matter what.
The procedures for initiating both types of actions are highly technical, and I will discuss each in further detail in future videos. Now that you know if a non-payment proceeding or a hold-over proceeding is best for you, you can watch the right video on our website to learn more. Of course, you could always just call us and speak with a lawyer for free to save time.
Evicting a tenant in Suffolk County can be a complicated matter, and if any mistakes are made, chances are they will result in your petition being dismissed, and the tenant being allowed to remain in possession of the apartment. As such, if you are a landlord looking to evict your tenant in Suffolk County, New York, the first step I would recommend is that you call an eviction lawyer that regularly practices in Suffolk County for a consultation. Our firm happens to offer free telephone consultations to landlords. During this consultation, the attorney you speak with will help you decide whether you need to bring a non-payment proceeding or a hold-over proceeding to remove your tenant, and can help determine if there are any notices required by law that may have to be served before you initiate an eviction proceeding to remove your tenant.
Once you know the type of proceeding you want to initiate, and you know which predicate notices must be served and when they must be served, you can then determine the appropriate courthouse to file your eviction proceeding in. In the five western towns of Suffolk County (which include the towns of Babylon, Islip, Brookhaven, Huntington and Smithtown), eviction proceedings are brought in the Suffolk County District Court in the district in which the property is located. For the five eastern towns (which include East Hampton, Riverhead, Shelter Island, Southampton, and Southold), eviction proceedings are brought in the town justice court for the town in which the property is located. If you have any questions about eviction proceedings in Suffolk County courts, feel free to contact us for your free consultation.
Like Suffolk County, evicting a tenant in Nassau County can be a complicated matter, and if any mistakes are made, chances are they will result in your petition being dismissed, and the tenant being allowed to remain in possession of the apartment. As such, if you are a landlord looking to evict your tenant in Nassau County, New York, the first step I would recommend is that you call an eviction lawyer that regularly practices in Nassau County for a consultation. Our firm happens to offer free telephone consultations to Nassau County landlords. During this consultation, the attorney you speak with will help you decide whether you need to bring a non-payment proceeding or a hold-over proceeding to remove your tenant, and can help determine if there are any notices required by law that may have to be served before you initiate an eviction proceeding to remove your tenant.
Once you know the type of proceeding you want to initiate, and you know which predicate notices must be served and when they must be served by, you can then file your eviction proceeding. In Nassau County, all the outlying districts have, many years ago, closed their courthouses and have consolidated in the courthouse of the First District Court of Nassau County, located at 99 Main Street in Hempstead. It is in the Landlord-Tenant Part of that courthouse that most eviction actions in Nassau County are heard. If you have any questions about eviction proceedings in Nassau County, feel free to contact us for your free consultation.
The length of time it takes to evict a tenant in Suffolk County or Nassau County, New York, depends on several factors, including the type of eviction proceeding and the venue the proceeding is filed in. In Nassau County, it could take 45 days or more from the date the action is commenced. In Western Suffolk County, it generally takes about 30 days. In Eastern Suffolk, it could take less than 30 days. The general rule is that the closer the venue is to New York City, the longer the action takes. And generally, hold-over proceedings take longer than non-payment proceedings, because predicate notices typically must be served on the tenants before the action can be commenced.
Most experienced landlord-tenant lawyers charge a flat fee for residential evictions. The customary fee for a residential eviction is generally in the range of $1,500 to $1,750 in Nassau and Suffolk Counties. Beware of lawyers who charge significantly more or significantly less than that. It may mean that they are not experienced landlord-tenant lawyers who regularly practice in that field. Also, beware of hidden or extra charges. Some lawyers may charge a low initial fee, and then bill you hundreds of dollars for each future court appearance. Not only do you almost always wind up paying more in the long run, but your case seems to always get adjourned to another court date, dragging out the eviction of your tenant. Generally, the only fee you should pay your eviction lawyer is his or her actual legal fee, and the cost of a process server to serve all required papers. At the Murtha Law Firm, we charge you one low flat rate, regardless of the number of court appearances, and regardless of whether we have to go to trial. We enjoy trials, because it means you will be walking out of the courtroom with a final decision on your eviction proceeding. And when your tenant sees that we mean business, reality usually sinks in, and we can often talk them into a settlement that is agreeable to the landlord.
Often, Suffolk and Nassau County landlords who call us looking to evict their tenant want to know what the fastest way possible to evict their tenant is. Unfortunately, there is no such thing as an express or expedited eviction. You cannot pay extra to evict your tenant sooner. The timeframe to evict your tenant is established by the laws of the State of New York, and by the speed at which the courts in Nassau and Suffolk County function. If we are retained as your eviction lawyers, we typically begin the eviction process within 24 to 48 hours after being retained, which means we will have your tenant evicted within the fastest timeframe allowable by law.
Sometimes lawyers with little experience in landlord tenant law may advise landlords that they can evict their tenants faster. But whether inexperienced or just unknowledgeable, anyone who claims to be able to expedite an eviction proceeding is not being truthful. Beware of scam artists such as “paralegals” illegally offering evictions who promise services that do not exist. All evictions must go through the same process at the same timeframe in Nassau and Suffolk County.
If you are a Suffolk County or Nassau County landlord seeking to evict your tenant, and you hire an experienced eviction lawyer to represent you, your lawyer can usually take care of everything for you up to and including the trial. Unfortunately, your lawyer cannot testify on your behalf, and if your tenant refuses to negotiate a settlement, and the matter goes to trial, the judge will want to hear your side of things. So, you will be required to appear in court and testify at trial. But do not worry, it is a simple and short procedure that we will walk you through and prepare you for, and in the end, if all goes well, your tenant will be evicted and you can move on with your life. We have prepared countless Nassau and Suffolk County landlords for trial, and once you watch another landlord-tenant trial go forward in the courtroom before yours, and once we prep you, it will be an empowering experience to know you can stand up to your tenant and take back your property. And usually once the tenant sees you mean business, he will be more willing to accept a settlement offer and resolve all the issues before trial, which sometimes is best for everyone. If you have any questions about landlord-tenant trials in Nassau County or Suffolk County, please feel free to give our office a call for a free consultation.
A lot of landlords seeking to evict their tenants call and ask us if they should serve their tenant with a notice of termination. Will that help us to evict the tenant faster if I serve them right now? First, you should ask if a notice of termination is even needed in your situation. Do you understand when a notice of termination is needed as opposed to a 14-day rent demand? Do you have a lease? What type of notice does the lease require you to give to your tenant before evicting them? What type of eviction proceeding will you be bringing, and what type of notice does the law require?
A notice of termination is a written notice that informs a month-to-month tenant, a tenant-at-will, or a tenant-by-sufferance that his or her tenancy is being terminated. It is the predicate notice in a hold-over proceeding to remove one of those types of tenants, and is the basis for the eviction in those circumstances. Depending on the type of tenancy and the length of time the tenant has been in possession, it may have to be a 30-day, 60-day, or 90-day notice. You should consult with an experienced landlord-tenant lawyer, who will determine what type of predicate notice, if any, needs to be served on your tenant. Your landlord-tenant lawyer will prepare the appropriate notice and have it served on your behalf.
In any event, as the landlord, you should not serve any papers on your own. All papers are required to be served by a non-party, like a process server, and they must be served in a particular manner. As your eviction lawyers, we will naturally take care of drafting all the paperwork and serving all papers on your tenant for you, so you will not have to worry about making a mistake that could be fatal to your case and result in having your petition dismissed. There is nothing worse than going to court and having your tenant laugh at you when the judge throws out your petition because you served the wrong type of notice. Give us a call and let us help you.
A 10-day notice to quit is a type of predicate notice that is generally served in situations where the person to be removed is not a tenant. In other words, if you are a homeowner, typically the only time you will be required to serve a 10-day notice is when you are trying to evict a licensee, who may be a friend who moved in with you and has overstayed his or her welcome and refuses to leave, or an ex-girlfriend or boyfriend who refuses to leave your house; or to remove a squatter, or for any other situation where the person you are seeking to evict was never a tenant and refuses to leave, and you want them gone. The 10-day notice must contain specific language and must be served in a specific manner by a non-party to be considered legally valid. As your eviction lawyers, we handle drafting and serving all notices for you. If you have any questions about 10-day notices or evictions in Nassau or Suffolk County, give us a call and we’ll be happy to help.
Unfortunately, as eviction lawyers, we see all too often parents who need to evict their adult children who become abusive, unruly, and refuse to move out of their parent’s house. In New York State, parents have a legal duty to support their children until they are 21 years old. Once your child turns 21, you can legally have him or her removed from your house if they refuse to leave. Now although this sounds unusual, unfortunately, sometimes our adult children make poor decisions in life, fall in with the wrong crowd, and they become abusive toward their parents when asked to conform to some basic civil living arrangements. Often, living with them can become a nightmare. The best thing you can do as a parent in this situation is to send your adult child out into the real world on their own. Let them live with a roommate for a while and see how long strangers put up with their behavior before they’re hit with a strong dose of reality.
Now, for the technical details. Evicting a family member, like an adult child or even an ex-spouse is permitted in landlord-tenant courts, unless the family member is an actual tenant who pays, or has paid rent, and that fact is undisputed. New York State law no longer requires that to evict a family member, you must bring what is called an action in ejectment in either Nassau or Suffolk County Supreme Court. To learn more about actions in ejectment, please visit our website or give us a call right now.
Generally, when someone refers to a “tenant eviction notice,” they are referring to a predicate notice of termination or predicate rent demand notice, required by law to be served on the tenant in a particular manner before the court will allow you to commence an eviction proceeding. This type of notice requirement mandates that the landlord serve the tenant with notice to either pay the rent or vacate the premises within 14 days; or that their tenancy is terminated as of a certain date. The content of such notices is strictly governed by law and they must be served in a very particular manner within a very particular timeframe, or your petition will be dismissed by the court. Whether you are required to serve one of these notices depends on several factors, such as the type of eviction proceeding you want to bring. If you are unsure whether a predicate notice is required to evict your tenant, give us a call and ask us. We’ll be happy to help.
If you are a tenant in Nassau County or Suffolk County, New York, and you believe your landlord is entering your apartment without your permission while you are not home, the first thing we recommend is to find out for sure. Whether you set up a security camera, or you call your landlord and just ask him, be certain you know what the situation is.
Generally, a landlord may not enter a tenant’s apartment unless it is to make safety inspections at reasonable intervals, such as once or twice a year, or to make emergency repairs, such as to repair a water pipe that has burst or is leaking, or for other emergency reasons.
If your landlord is entering your apartment, and you are sure of that, and it is not for one of these reasons, your landlord may be violating the law. You can call the police and file a police report, or you can simply call your landlord and tell him to stop. The landlord may own the property, but it does not give him the right to enter your apartment whenever he feels like it. It is your home, and other than the for exceptions previously discussed, he may not enter without your permission or he may be violating the law.
If you are a landlord of a Section 8 apartment, and you need to evict your Section 8 tenant, the procedures are much more intricate than evicting a regular tenant. The Section 8 program allows private landlords to rent apartments and homes at fair market rates to qualified low income tenants, with a rental subsidy administered by Home Forward. “Section 8” is a common name for the Housing Choice Voucher Program, funded by the U.S. Department of Housing and Urban Development. Section 8 tenants are subject to the same eviction laws as non-Section 8 tenants, with certain exceptions. For example, in a Section 8 eviction, the local Section 8 agency providing benefits must receive a copy of all the papers served, and must be furnished with a description of the grounds for the eviction. The petition in a Section 8 eviction proceeding must contain certain special language as well. The timeframe for evicting a Section 8 tenant in the courts of Nassau County and Suffolk County are the same as regular eviction proceedings, however the additional language required and the additional steps that must be taken make Section 8 evictions more complicated for someone who is inexperienced with Section 8 evictions.
A hold-over proceeding is one of the two types of eviction proceedings in New York that allow a landlord to evict his or her tenant. It allows a landlord to recover possession of the property from the tenant based on reasons OTHER than the failure to pay rent. If you are simply looking to evict a tenant based solely on their failure to pay rent, and you do not mind if he stays as a tenant if he pays all the back rent in full, then you may want to consider a non-payment proceeding instead of a hold-over proceeding.
Examples of situations where a hold-over proceeding should be used instead of a non-payment proceeding include a tenant whose lease has expired or was terminated and who refuses to leave; a licensee who was never a rent-paying tenant but who overstayed his welcome; a squatter; a person whose possession is incident to employment, etc.
Usually, a predicate notice is required before initiating a hold-over proceeding. This means that before you can bring a hold-over proceeding, some form of notice must be served on your tenant by a non-party. And by non-party, I mean that you, as the landlord, cannot serve the notice on your tenant yourself. It must be served by a process server or a non-party. As your lawyer, we take care of the drafting, and proper serving of this predicate notice for you. The type and length of the notice and the method of service depend on many factors. It is best to speak with an eviction attorney to find out the type of notice, the length of notice, and the service requirements of the notice for your individual case.
A non-payment proceeding is a type of eviction proceeding where the landlord is seeking to evict the tenant based on the tenant’s failure to pay rent. In a non-payment proceeding, the money sought by the landlord must be actual rent only, not money for repairs or damages; and it must have accrued in the past 6 months only. You cannot collect back rent from more than six months ago. This is known as the doctrine of stale rent, or more properly, “laches,” and it is like a statute of limitations on lawsuits for rent. The landlord must also have demanded the rent from the tenant by having had a 14-day notice served on the tenant, before bringing a non-payment proceeding. The 14-day notice essentially demands that the tenant pay all of the back rent in full within 14 days, or move out. It lets the tenant know that if he does neither, the landlord will evict him. At the expiration of the 14-day timeframe, if the tenant still has not paid all rent due and owing, or moved out, the landlord may file a non-payment proceeding.
It is important to note that the 14-day notice must be served in the same manner as a petition. This means that the landlord cannot serve the notice personally, it must be served by a non-party like a process server. If you fail to meet the exacting service requirements for serving the 14-day notice, your petition will be dismissed by the court. Of course, if we are retained as your eviction lawyers, we take care of all of this for you.
One other important factor to keep in mind with non-payment proceedings is that although it typically is a faster proceeding compared with a holdover proceeding, bear in mind that if your tenant shows up to court and pays all the back rent you are claiming in your petition, your petition will be dismissed, and you will not be able to evict your tenant (at least, not based on non-payment grounds). So, if you have a situation where your tenant is volatile, and you simply want him to leave, you may be better off bringing a hold-over proceeding as opposed to a non-payment proceeding to evict your tenant, even if rent is also an issue. If you are not sure which type of eviction proceeding is best for you, please give me a call, right now, and I will be happy to speak with you for free.
Landlord-tenant law in New York is a very complex and specific area of law. Its many technical features are difficult to navigate, and in many cases, are unknown, even to lawyers experienced in other fields. While representing oneself in an eviction matter is not recommended, being represented by a lawyer who “dabbles” in landlord-tenant law may be even more problematic, and may even delay the eviction of your tenant. If you intend to retain a lawyer for your eviction matter, always make sure you choose an experienced landlord-tenant lawyer. Please visit our website to learn more about how we can help you.
If you are a landlord in Nassau County or Suffolk County, and you failed to get a rental permit for your apartment before you started renting, and your tenant found out that the apartment is illegal and has stopped paying rent, do not worry. You can evict your tenant from an illegal apartment, just like you could evict any other tenant as a homeowner. You should just be aware that there is a good chance your disgruntled tenant will report you to the town for renting an illegal apartment, and may even let the town inspector in to the apartment to inspect it. So, if you are a landlord in a situation where you think your tenant may report you for having an illegal apartment, one of the best things may be to contact your town’s rental division of the planning and development department, and begin the process to legalize your apartment. They typically will not issue you a fine if you come to them first. This way, if your tenant does report you, the building inspector will see that you are currently in the process of legalizing your apartment, and you may not be issued a summons. Once your problem tenant is evicted, you can decide if it is worth it to proceed with the rental permit application, or to simply decide not to go forward with the permit process.
If you are a tenant in Nassau County or Suffolk County, and you discovered that you live in an illegal apartment, you essentially have two options: move or stay. But if you stay, you have to pay rent. The fact that a Suffolk County or Nassau County landlord may be renting in violation of the law does not relieve a tenant living in that illegal apartment of the duty to pay rent. The legality of an apartment is based on a local ordinance, such as a provision in the town code, and is a matter between the landlord and the town or local government. The fact that a landlord may be renting in violation of the law does not provide any additional rights for you as a tenant. A tenant in an illegal apartment can be evicted in the same manner as a tenant in a legal apartment.
If you are a tenant living in a basement apartment in Suffolk County or Nassau County, Long Island, your apartment is almost certainly illegal. In Nassau and Suffolk County, generally, people are prohibited by law from living below ground. With certain rare exceptions, all basement apartments, therefore, are illegal. But as discussed previously, the legality of an apartment is a matter between the landlord and the town or local government. The fact that a landlord may be renting an illegal basement apartment does not relieve the tenant of the obligation to pay rent. In other words, if you don’t like living in an illegal apartment, you can move, but if you choose to stay, you have to pay rent or the landlord can evict you.
If you are a tenant in Nassau County or Suffolk County, and you have discovered that the house owned by your landlord, where you reside and where your apartment is, is now in foreclosure, you still have a legal obligation to continue to pay rent. The view of the courts is that the landlord’s finances are none of a tenant’s business. If your landlord wants to take your rent money and go to Disneyland instead of paying the mortgage, that is his business, and not yours. As long as you live there and the landlord still owns the house, you must pay rent to the landlord. If you do not pay rent, your landlord can evict you.
The fact that the landlord’s bank is suing him has no effect on your obligation as a tenant to pay rent. Most foreclosure actions go on for years, and many are settled with a modification of the mortgage, meaning the landlord will get to keep the house. During the pendency of a foreclosure action, the landlord still owns the house and maintains all of his or her rights, and rent must be paid by the tenant or the tenant may be evicted.
If you are a Suffolk County or Nassau County landlord who has won at trial or settled an eviction matter with your tenants, and the court has issued a judgment of possession and warrant of eviction, and your tenants have remained in possession of the apartment past the vacate date set by the court, your next step is to go to either the Nassau County or Suffolk County Sheriff so the Sheriff can physically remove your tenants and their belongings from your apartment. Most Sheriffs’ offices have a slight backlog in evictions, and it depends on the Sheriff’s schedule at the time. But they almost always promptly serve a 14-day notice on your tenants at the apartment, which, most of the time, results in your tenants vacating the apartment in a hurry. When deputies in uniform show up with a notice, reality tends to sink in, and even the most vile tenants know that the game is over and it’s time to go. You can contact the Suffolk County or Nassau County Sheriff’s Office and ask them for a current estimate of how long it will take them to evict a tenant. But in general, it does not take very long.
In Nassau or Suffolk County, when a landlord evicts a tenant, and either successfully negotiates a settlement or prevails at trial, the court will usually issue a judgment of possession and a warrant of eviction, which determines what date your tenant must move out by. If the tenant remains in possession of the apartment after this date, a landlord’s next step is to take the judgment and warrant issued by the court to the County Sheriff, and request that the Sheriff physically remove the tenant from the premises. One of the first steps that the Sheriff’s Office will take is go to the apartment and serve a 14-day notice on your tenants. This 14-day notice essentially informs your tenants that they have 14 days to vacate the premises, or the Sheriff will return and physically remove them and all of their belongings from the apartment. It is extremely rare that a tenant will remain in possession of the apartment past this deadline, as no one wants their belongings moved to the street in Suffolk County or moved to a storage facility in Nassau County. But serving a 14-day notice on the tenant is the first step the Sheriff must take in executing the warrant of eviction.
If you are a landlord in Suffolk County or Nassau County that prevails at a landlord-tenant trial, the court will issue you a judgment of possession and a warrant of eviction. The judgment of possession awards the landlord possession of the rental property. A warrant of eviction directs the county sheriff to remove the tenants, by force if necessary, and to put you, the landlord, back in possession of the rental property. If you were also issued a money judgment against your tenants, your money judgment will be issued at the same time as the judgment of possession and warrant of eviction by the court.
If you are a landlord in Nassau or Suffolk County, and you want to know how to evict your tenant for failing to pay the rent, the first step we recommend you take is, of course, to call an eviction lawyer for some free advice. Every situation is unique, and we can help walk you through the exact steps legally required for you to evict your tenant.
First, you must comply with whatever notice provisions are contained in your written lease agreement. After that, you must send the tenant a written notice by certified mail informing him or her that you have failed to receive the rent within 5 days of its due date. Then you must arrange to have a 14-day rent demand served on the tenant giving them 14 days to either pay all the back rent or move out. Your landlord-tenant lawyer will review the written lease agreement and will make sure its requirements are satisfied. He or she will also prepare all of the proper notices and arrange to have them served.
If the tenant fails to pay the rent within the timeframe demanded, a non-payment petition must be drafted, filed, and served on your tenant. As your eviction lawyers, we naturally draft all required notices and petitions, we cover all filing fees with the court, and we hire a process server on your behalf to ensure all your papers are properly served and filed, so when we show up to court, we have a rock-solid case against your tenant and can evict him as quickly as possible.
If you are a landlord in Nassau County or Suffolk County, and you have recently discovered that your tenant is a disagreeable or disrespectful person, and you just want to get rid of him, you need to ask some questions. First, do you have a written lease with this tenant for a term? In other words, is your agreement in writing, or is it a tenancy-at-will? If you have an annual term lease with this tenant, then the next question is, does the tenant pay his rent? If you signed a term lease with your tenant, and he pays his rent on time despite being a jerk, then no, you cannot evict your tenant just for being a jerk, so long as he keeps paying the rent. But if there is no written lease, or if you simply have a month-to-month tenancy, tenancy-at-will, or some other type of tenancy, then yes, you can bring a hold-over proceeding to evict the tenant, even if he pays his rent on time. Give us a call about your problem tenant, and we will be happy to give you a free consultation as to how you can best get rid of him.
It is very rare, but on occasion, a not-so-knowledgeable landlord will choose to take the law into his or her own hands and, rather than evict their tenant through the court system, will simply illegally lock their tenant out of his or her apartment, such as by removing the tenant’s belongings or changing the locks. The landlord may also illegally shut off the tenant’s utilities such as heat, hot water or electricity.
If you are a tenant in Nassau or Suffolk County, and your landlord has removed your belongings from your apartment or simply changed the locks on your apartment without first going through the lawful court procedure to evict you, call the police immediately. In many instances, the police can force the landlord to let you back in. If that does not happen, then you should consult with and retain an experienced landlord-tenant lawyer immediately. Your landlord-tenant lawyer will prepare and have a judge sign an order to show cause, directing the landlord to refrain from denying you access to the apartment and requiring the landlord to come to court, where the judge can issue a permanent order deciding the matter. In certain circumstances, you may even be entitled to recoup damages from the landlord who unlawfully locked you out. If you are a tenant who has been illegally locked out of your apartment in Nassau County or Suffolk County, New York, give us a call to learn more about how we can help you.