Purchasing residential homes that have been the subject of foreclose proceedings at court-ordered auctions is becoming more and more popular on Long Island. It is a fast way to acquire real property, often at an excellent price. But such purchasers are learning that when you buy a house in that way, you must often deal with the issue of removing the prior owners of the property who are still living in it.

Experienced landlord-tenant firms, like the Murtha Law Firm, LLC, are seeing an increase in the number of post-foreclosure evictions in Nassau County and Suffolk County. One of the most significant issues in such cases is satisfying the statutory predicates to bringing such a summary eviction proceeding.

Under Section 713 (5) of the Real Property Actions and Proceedings Law (RPAPL), an eviction proceeding may be maintained after a ten-day notice to quit has been served upon the respondent in the same manner as a notice of petition and petition are required to be served (RPAPL 735), upon the grounds that the property has been sold in foreclosure and either the deed delivered pursuant to such sale, or a copy of such deed, certified as provided in the civil practice law and rules, has been exhibited to the respondent. This provision has two very distinct requirements: first, that a ten-day notice to quit must have been served; and second, that either the deed delivered pursuant to such sale, or a copy of such deed, certified as provided in the civil practice law and rules, has been exhibited to the respondent.

With respect to the first requirement – that a ten-day notice to quit be served – the statute provides specific instructions as to how it must be served. The ten-day notice to quit must be served in the same manner as the notice of petition and petition must be served, which is set out in RPAPL 735. But what about the second requirement – that either the deed delivered pursuant to such sale, or a copy of such deed, certified as provided in the civil practice law and rules, must be exhibited to the respondent? Here there is no statutory guidance or definition of what is meant by “exhibited.” Hence, it has been left to the courts to determine when the deed, or certified copy thereof, has been properly and sufficiently exhibited.

The seminal case explaining this otherwise amorphous term is Home Loan Services v Moskowitz, 31 Misc 3d 37 (App Term, 2d, 11th and 13th Dists 2011). And it is of this case that most petitioners and even their attorneys run afoul, resulting in the dismissal of their eviction action. There is nothing wrong with serving the ten-day notice to quit and a certified copy of the deed together, and that is what most attorneys do. However, the service requirements for the ten-day notice to quit are quite different from the exhibition requirements of the deed.

The ten-day notice to quit must be served at the property sought to be recovered, either by personally handing the notice to the respondent; personally handing it to someone of suitable age and discretion who resides at the property, followed by certain mailing requirements; or affixing the papers conspicuously to the property, if, after due diligence, neither the respondent or a person of suitable age and discretion can be found at the property, followed by certain mailing requirements. The exhibition of the deed, however, can only be accomplished personally under Moskowitz.

All too frequently when petitioners or their attorneys try to serve both the ten-day notice and a copy of the deed together, the ten-day notice will be served properly, but the exhibition of the deed will fail. For example, serving both to a person of suitable age and discretion, or by affixing both conspicuously to the property, is not sufficient under Moskowitz.

Moskowitz requires that to properly exhibit the deed, it must be personally handed to the respondent. There is no other method of satisfying this requirement. But what most petitioners and their lawyers do not realize is that while the exhibition provision has a very narrow requirement for accomplishment, i.e., it must be personally done, it does not have the narrow requirement that it be served concurrently with the ten-day notice, or that it must be exhibited to the respondent at the property sought to be recovered.

Hence, the smart petitioner or attorney will not necessarily serve the ten-day notice and the deed together. Rather, they will serve the ten-day notice in the familiar method described above, and will serve a certified copy of the deed separately on the respondent by personally delivering and handing it to the respondent wherever he may be found.

If you have purchased a residential property at an auction subsequent to a foreclosure action, you will likely find yourself in the position where you must remove the prior owners. This article describes one of the many pitfalls you will face in achieving this. To make sure the prior owners of the property are properly and lawfully evicted, you should consult with, and retain, an experienced landlord-tenant lawyer. The Murtha Law Firm, LLC, focuses its practice almost exclusively in the area of landlord-tenant law, and is standing by to represent you.

James D. Murtha, Esq.

Author James D. Murtha, Esq.

I am a Managing Member at the Murtha Law Firm, LLC, and I am an eviction lawyer in Suffolk County and Nassau County, Long Island, New York. You can call me, right now at (631) 747-0356, and I'll be happy to speak with you for free about the New York eviction process.

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