Most landlords will eventually be confronted with the eviction process when they have to evict a tenant, either for non-payment of rent or for other violations of the lease agreement. When dealing with an eviction, there are some important steps a landlord should remember.
Eviction Process: Main Steps
Communicate with the tenant and try to negotiate a payment plan to avoid the formal eviction process. Naturally, the local landlord-tenant court is not the preferable option for most people. If you are willing to give your tenant some time to pay the back rent — perhaps in installments — and if you are confident that the tenant is able to honor the payment schedule, negotiating a payment plan will save you the expense of retaining an attorney and commencing legal proceedings.
Serve the appropriate notice to terminate the tenancy. If you are certain that your landlord-tenant relationship cannot be salvaged or that your tenant will not be able to pay the rent, the first step in the eviction process is to give notice to your tenant that you wish to terminate the tenancy. The type and content of the notice to be served and the method of service depends on the type of tenancy held, the reason for the eviction and the requirements of the lease agreement, if any. You should consult with an attorney before trying to serve a notice. Often landlords serve their own form of notice, which has no legal effect and only serves to delay the eviction process. Most landlord-tenant attorneys will draft a notice to terminate the tenancy for you if needed at no additional charge if you retain them to handle the eviction.
One of the most common mistakes landlords representing themselves in the eviction process is improperly serving the notice to terminate the tenancy. If the language of the notice is defective, if it is served incorrectly, or if the wrong type of notice is served, the court will dismiss your case.
Commencing an action to evict a tenant. The correct forum and venue for the action must be determined, based on the law. A notice of petition with petition must then be drafted and filed in the appropriate court, at which time a fee must be paid to the clerk of the court, who will usually assign an index number at the time of filing.
In Nassau County, landlord-tenant cases are brought in the District Court of Nassau County, as well as in the City Courts of Glen Cove and Long Beach. In Suffolk County, landlord-tenant cases are brought in the District Court of Suffolk County or one of the village justice courts in the five western towns; and in the town or village justice courts in the five eastern towns. The notice of petition with petition must then be properly served in accordance with the formal evictions process and Real Property Actions and Proceedings Law.
The two most typical types of landlord and tenant actions brought in Nassau and Suffolk County are:
- Non-Payment Actions – to evict a tenant because he or she has failed to pay the rent despite the landlord’s demand for payment.
- Hold-Over Actions – to evict a tenant where non-payment of rent is not the only reason for the eviction and the primary goal is the removal of the tenant.
Landlord tenant proceedings are highly specialized, and procedural rules have to be followed closely, or your case will be dismissed by the court.
Appear in court on the date the petition is noticed to be heard and be prepared to testify at trial. If the tenant appears in the action, it will be necessary for the landlord, or someone with personal knowledge of the facts of the case, to appear in court and testify. If you retain an attorney to handle the eviction for you, he or she will guide you and prepare you for your appearance. Since each case varies, your attorney will advise you with more particularity throughout the evictions process.
Submit your proposed judgment and warrant. Once the trial is over, the judge will issue his or her decision. If it is in your favor, you will have to draft and submit a proposed judgment (both for money, if awarded, and for possession) and a warrant of eviction. It is also wise at that time to also pay the fee for a transcript of judgment, as you will need a transcript if you plan to enforce the judgment and have the warrant executed. You then must wait for the judge to approve and sign your judgment and warrant, and mail them to you or to your attorney if you have one. This would conclude the courtroom part of the eviction process.
Typically, tenants who lose at trial vacate the premises shortly after the trial. They know you have the ability to have the Sheriff physically remove them. As no one wants to be physically removed with all of their furnishings and belongings and left at the curb, most tenants find a new place to live and move on. In some cases, tenants will wait until one of the last steps in the eviction process, when the Sheriff serves them with a 72-hour notice before moving on. It is rare that a tenant will remain in possession after losing at trial long enough for to be physically removed by the Sheriff. If the tenant causes damage to the property in excess of any security deposit you may be holding, you can start a new eviction process to recover your losses.
If your tenants refuse to leave after you win your case, the Sheriff can physically remove them. Lawyers represent landlords in New York evictions proceedings until they secure a judgment and warrant, or a settlement. Their representation ceases once the case has been disposed. This typically means that if your tenant refuses to leave after trial, you will be responsible for the last step in the eviction process, which is making the post-judgment arrangements with the Sherriff to have your tenant removed.
We provide step-by-step, post-judgment guidance to our clients to assist them in the enforcement of their judgments, and we plan to have a formal guide available to the public on our website soon to assist landlords who have not received the help they need from their representatives so they may conclude the remainder of the eviction process on their own.
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