July 31, 2018
Breach / Eviction and Summary Proceedings
1. Self Help is prohibited: Landlord cannot remove the tenant, or use any other way to remove tenant (such as changing locks) on its own. 1
a. Treble damages: If landlord engages in self-help, tenant may be entitled to treble damages.
i. Nominal damages may be awarded even if no consequential damages found.2
b. Tenant Skip:
i. Verify no possessions in unit (otherwise eviction).
ii. Change locks and relet.
2. Summary Proceedings: procedures by which the landlord can recover possession of the premises in residential or commercial lease situations.
a. Basically, in Rochester, is either Town Court, Rochester City Court (if applicable), or County Court (always applicable).
i. County Court expense deterrent.
b. Note: this is different than a non-payment or breach of contract proceedings without an eviction. In these cases, contiguous county cases can be brought in
Rochester City Court, or the cases may be brought in Supreme Court.
c. Appropriate Court:
i. Eviction proceeding may be brought in a county court, city court, village court, etc. but the case must be heard within the jurisdictional area of the court in which the real property is located.3
ii. If the tenant has left, and no eviction proceeding is brought, this is a simple collection matter and not an eviction matter. Real property location requirements do not apply even though the collection is related to a lease.
iii. Because specific courts are required due to the situs of the property, standard caps on monetary amounts claimed in the village and town courts do not apply for the judgment portion.
3. Person entitled to bring Summary Proceedings: RPAPL §721 provides ten categories:
a. §721(1): landlord
b. §721(3): purchaser at foreclosure sale
c. §721(6): person entitled to possession of the property intruded into or squatted upon
d. Note: attorneys and managing agent are not entitled to bring summary proceedings pursuant to this section.
4. Two Statutory Provisions Used to Bring Evictions:
a. RPAPL §711: used if the landlord recognizes a landlord/tenant relationship.
i. §711(1): tenant continues in possession after the expiration of the term without the permission of the landlord.
1. Note: case law provides that cannot accept rent prior to commencement of the proceeding, but §711(1) states that acceptance of rent after commencement on this ground shall not terminate the proceeding or affect any award of possession.
ii. §711(2): tenant defaulted in the payment of rent and demand has been made on 3 days notice.
iii. §711(3): tenant defaulted in the payment of taxes he has agreed in writing to pay.
iv. §711(4): tenant was declared bankrupt
b. RPAPL §713: used if it is claimed no landlord/tenant relationship ever existed.
i. §713(1): property was sold in an execution against the person now in possession.
ii. §713(3): person has intruded into or squatted upon the property without the owner’s permission.
iii. §713(4): property sold by tax deed
iv. §713(7): person was a licensee of the person entitled to possession, and the license expired, was revoked, or the licensor is no longer in possession.
c. RPL §233: Specific grounds required to evict a mobile home park tenant.
5. Notice to Quit and Time Periods
a. Non-payment
i. §711 RPAPL requires 3-day notice to Quit
ii. Cannot do this less by contract
b. Ending month to month: 1 month notice4
c. Mobile home: 30 day notice5
d. No landlord/tenant relationship, but eviction needed: 10 day notice6
e. Service of Process for Eviction7
i. Personal service
ii. Substitute Service
f. Pursuant to RPAPL §711(2) and §735, a notice to quit shall be served by:
i. Personally delivering it to the tenant, anywhere in New York; or
ii. Delivering to and leaving personally with a person of suitable age and discretion who resides or is employed at the property sought to be recovered; and within one day after such delivery to such suitable person, mailing a copy of the Notice to Quit to the tenant at the property sought to be recovered both by registered mail or certified mail and by regular first class mail. The post office also needs to stamp the certified mailing receipt; or
iii. After making three attempts at different times of the day, affixing a copy of the notice to quit upon a conspicuous part of the property sought to be recovered or placing a copy under the entrance door of such premises and within one day after such affixing or placement, mailing a copy of the Notice to Quit to the tenant at the property sought to be recovered both by registered mail or certified mail and by regular first class mail. The post office also needs to stamp the certified mailing receipt.
g. If referring to Woods, when you send the referral to our office we ask that you attached the Notice to Quit and accompanying Affidavit of Service and the receipt for certified mailing that has been stamped by the post office. Please note it is important to have a separate Notice to Quit for each tenant and have an Affidavit of Service for each individual Tenant.
h. These cannot be served on Sundays.8
6. Non-Payment / Eviction Proceedings and the FDCPA:
a. Notices sent from attorney: in a nonpayment proceeding, a 3-day demand for rent (as required under RPAPL §711) must contain FDCPA warnings and notices if it is sent by someone other than the creditor (ie., other than the landlord).
i. We generally receive files where the landlord has already served the 3-day demand.
ii. If attorney sends the demand, the FDCPA warnings and notices are required. Romea v. Heiberger, 163 F.3d 111 (2nd Cir. 1998)
b. Validation Requirements:
i. Second Circuit decision Goldman v. Cohen, 445 F.3d 152 (2006) involved
a landlord/tenant situation and stated that a lawsuit against a consumer for
a consumer debt constitutes a communication by an attorney.
1. *Note that this only applies to consumer debt situations, ie. nonpayment proceedings in a residential context.
ii. Now we need to include a validation notice and a safe harbor notice with the notice of petition if have not already notified the tenant of their validation rights under the FDCPA (to have the debt validated).
iii. Note that this creates a problem because of the 5-12 day requirement for tenant service, and the 30 day FDCPA timeline to seek validation.
iv. Therefore, in a notice accompanying any initial proceeding (including a
Notice of Petition), must state: “This advice pertains to your dealings with me as a debt collector. It does not affect your dealings with the court, and in particular it does not change the time in which you must answer the complaint [or other legal pleading]. The summons is a command from the court, not from me, and you must follow its instructions even if you dispute the validity or amount of the debt. The advice in this letter also does not affect my relations with the court. As a lawyer, I may file papers in the suit according to the court’s rules and the judge’s instructions.”
1. We have a standard form we use for this.
c. FDCPA Violations Do Not Effect Eviction: note that an eviction is a state court proceeding whereby the attorney is not a party. A FDCPA violation by the attorney is not a defense to an eviction proceeding.9
7. Holdover Tenant: a tenant who remains in the property after his rights to continue in possession has expired.10
a. Damages: the measure of damages for wrongfully holding over is the reasonable rental value of the premises for the period possession is withheld.11
b. If landlord accepts rent from holdover tenant, a month-to-month tenancy is created, commencing on the first day after expiration (unless the parties expressly or impliedly agreed to longer term).12
i. A month to month tenancy continues on the same terms and conditions of the expired lease. See
c. Month-to-month tenancies: Landlord must give one month’s notice of termination. Tenant must also give one month notice of termination.13
d. Holdover tenant when tenancy terminated due to a default in lease terms:
i. Lease provision: normally lease contains a provision stating that if there is
a default, the landlord, at its option, can actually terminate the lease on a specified date as though that were the actual end of the lease.
1. Ex., if unruly, or nonpay, there may be a provision provided for x days’ notice upon which landlord can terminate if not cured.
2. This issue distinguishes between tenant’s conduct allowing a termination of lease and lease provision setting a termination date\ of the lease based upon a fixed notice of a default.
ii. Ex. Blumberg lease forms generally say something to the effect of:
1. “Landlord may give Tenant 5 days written notice of the following
defaults:”
2. “If tenant fails to correct within 5 days, Landlord may cancel the lease by giving Tenant a written 3 day notice stating the date the term will end.”
iii. Termination Notice: Your lease is terminated effective three (3) days from the date of service of this notice on you. Your lease shall expire and come to an end on the date fixed in this notice as if said date were the date originally fixed in the lease for the expiration thereof.14
8. Procedure:
a. Commencement of Proceeding: brought by service of notice of petition and petition.
i. Method of Service: Personal service is preferred, but substitute service (affixing a copy or service on another person of suitable age and discretion) may also be used.
1. If substitute service is used, must also mail a copy of the petition by registered or certified mail, and by regular first class mail. 15
ii. Proof of Service: proof of service must be filed with the court or the court clerk within 3 days after service.16
iii. Timing of Service: the Notice of Petition and Petition must be served at least 5 and not more than 12 days before the Court appearance on the matter.17
iv. Trial: If triable issues of fact are raised, the court can try the issue at the time the petition is heard, unless a party demands a jury trial. Court may grant an adjournment if it deems it necessary.18
v. Answer
1. There are statutory provisions for time periods for which a tenant may answer. However, in practice, in Rochester, the judges generally give great leeway in residential evictions to the tenant for answers.
b. Tenant presence in Court: In Rochester, generally the courts will require the landlords’ attorney to remain in court for 30 minutes to 1 hour in case a nonresponding tenant appears.
c. Recovery of rent due: In Rochester City and some Town Courts, judges will not grant any judgment or fees unless the tenant was personally served or appears in Court.
9. Warrant of Eviction: RPAPL §749
a. A warrant may be granted by the Court after final judgment has been rendered for the landlord.
b. Can only be performed by the sheriff, marshal or constable.
c. 72 Hours’ Notice: officer must give 72 hours’ notice in same manner of service as allowed for service of notice of petition. Must also give notice of eviction between sunrise and sunset.
d. Rent recoverable: Landlord may recover the reasonable value of the use and occupation up to the time upon which the warrant was issued.
e. Note: Special Provisions for Mobile Home Park Tenant: RPL §233: In an eviction involving a mobile home park tenant, generally 90 days’ notice must be provided.
i. Exception: a minimum of 30 days’ notice must be given for the eviction. This must be explicitly stated in the warrant signed by the judge. 30 days is only provided if there is a threat to the health, safety, or welfare of other tenants in the mobile home park.
10. Stay of Warrant for Non-Payment Proceedings: the issuance of a warrant may be stayed by a deposit of the amount due from nonpayment, plus interest and costs and penalty.19
11. Stay of Warrant in Other Proceedings: a warrant may be stayed for up to 4 months upon a showing of acute need and upon the making of a deposit or undertaking.20
a. Note: there are specific rules for NYC.
12. Abandonment of Personal Property:
a. Eviction proceeding under lease grounds.
b. Sheriff will perfect warrant with items remaining.
c. Options (at sheriff determination):
i. Padlock premises for 30 days.
ii. Remove items and store in another apartment on-site.
iii. Remove items and store in storage facility (** you may be able to charge this to tenant per lease terms in separate proceeding.
d. Must give tenant access to personal property if come to pick up within 30 day time period (can schedule appointment during normal business hours) – if do not allow, may be liable for conversion.
e. After 30 days can dispose.
f. **Best practice: send letter to tenant after eviction notifying them of time period until treat property as abandoned.
g. Sheriffs and marshals tend to have specific procedure they will want you to follow when the perfect the eviction. Regardless of sheriff/marshal, we give 30 days to avoid disasters.
13. Tenant’s Rights and Defenses:
a. Payment: Tenant must prove pay
b. Willful violation: landlord failed to provide an agreed-upon service to the tenant. Must be intentional and permit the inference of malice.
c. Retaliation or Harassment by Landlord:
i. Tenants can form, join or participate in tenants’ association.21
ii. Landlord cannot evict tenant in retaliation for tenant’s good faith complaint of a violation of any law or regulation, or actions taken in good faith by or on behalf of the tenant to secure warranty of habitability rights.22
d. Defective Petition23
e. Repair and Deduct
i. Generally, there is no liability that attaches to the landlord for duty to repair and deduct unless and until the tenant provides notice or the landlord otherwise has knowledge of the repair.24
ii. Breach of landlord’s covenant to repair is not an excuse to tenant’s covenant to pay rent.25
iii. Tenant has two options (one and only one):
1. Sue for damages sustained as a result of the landlord’s failure to repair; or
2. Tenant makes the repairs by himself and charges the costs of the repairs to the landlord by counterclaiming on landlord’s nonpayment proceeding.26
iv. Loss of Enjoyment: Tenant cannot recover for losses to enjoyment while making repairs because loss would have occured when landlord made repairs as well.27
f. Warranty of Habitability:
i. Generally provisions: implied in every written or oral lease or rental agreement, the landlord is deemed to covenant and warrant that the premises are fit for human habitation and for the uses reasonably intended by the parties and the occupants shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health, or safety.28
ii. Covers both latent and patent defects to the premises.
iii. Cannot contract around this in residential leases – any agreement waiving or modifying is void.
iv. *Provisions do not apply to commercial tenants.29
v. Examples:
1. Tenant without water.30
2. Heat and hot water complaints.31
3. Odor complaints.32
4. Plumbing (leaks).33
5. Vermin.34
vi. Proving Breach:
1. Code violations: Violations of health or safety codes do not constitute automatic breach of warranty. Parties must come forward with evidence regarding extensiveness of the breach and the impact on health or safety.35
2. Reasonable person standard is used to determine when a breach of the warrant of habitability has occurred.36
3. Expert testimony regarding breach is not required.37
vii. Remedy: A tenant who claims breach of the warranty of habitability may withhold rent and assert the warranty as a defense against a landlord’s proceeding to recover rent.
viii. Damages: The proper measure for the breach is the difference between the fair market of the premises if they had been as warranted as measured by the rent reserved under the lease and the value of the premises during the period of the breach.38
1. Award may be money granted to tenant in plenary action or as a setoff in a summary non-payment proceeding where the tenant has counterclaimed or asserts an affirmative defense.39
2. Generally, Courts grant 10-20% abatement for minor breaches, 30% for moderately serious, and 50-60% for serious.
3. Punitive damages or damages for mental distress may be
recovered.40
g. Constructive Eviction: Occurs when the physical expulsion of the tenant is not effected, but the interference by the landlord with the possession of the tenant or the tenant’s enjoyment of the leased premises is of such a substantial nature and so injurious to the tenant as to deprive him of the beneficial enjoyment of a part or a whole of the leased premises and to necessitate his abandonment of the leased premises within a reasonable time thereafter.41
i. Applies to both commercial and residential premises.
ii. In order for there to be a constructive eviction, the deprivation of enjoyment of the premises must be substantial and effectual.42
iii. Simple repairs or complaints that can be readily remedied by the tenant are not acts which are materially sufficient to constitute a constructive
eviction.43
iv. However, acts which are serious and persistent and continue for an unreasonable amount of time will constitute a constructive eviction.44
v. To amount to a constructive eviction, it should appear that the landlord has persistently neglected his duty, leaving the apartment to become unfit for occupancy.45
vi. The rule of constructive eviction is that the tenant is barred from relief where he occupies the entire premise.
vii. Partial Constructive Eviction: a tenant may allege a portion of the premises was unusable.
h. Laches: a demand for stale rent. New York statutes do not specify a maximum time period to lapse in order to collect on rent, but some courts have refused to grant damages for damages over five months old. A plenary action may be independently brought for these damages. Many times a Court will issue a warrant in these situations but not damages.
i. Damage to premises rendering it unfit: in the absence of contrary agreement, where a building is destroyed by the elements, or by any other cause as to be untenable, and unfit for occupancy, the tenant, as long as the destruction occurred without the tenant’s fault or neglect, may quit and surrender the premises.
MOBILE HOME PROCEDURES
1. Lease Period: A manufactured home park owner must offer every manufactured home tenant, prior to occupancy, the opportunity to sign a lease for a minimum of one year.46
a. Renewal/Unsigned Lease: There are several requirements basically requiring the manufactured home park owner to provide written offers for a minimum of a one year lease to home owners who are in good standing but not under a lease (every October 1) or under a lease set to expire (90 days written notice of a new lease offer).47
b. Home Owner Default: If the owner is in default by 1. nonpayment of more than one month’s rent, 2. using premises as a body house, 3. violation of state/local law ordinance, or 4. any lease term, the park owner must have provided the home owner written notice of the default at least 30 days prior to the date upon which the park owner would be required to provide an offer for a new lease.
2. Fees: A home owner cannot be charged a fee for other than rent, utilities and charges for facilities and services available to the tenant. All fees, charges or assessments must be reasonably related to services actually rendered.48
3. Rules and Regulations: Rules and regulations cannot be unreasonable, arbitrary or capricious. They also must be delivered to all tenants at the time the park owner offers the written lease and be posted in a conspicuous place on the grounds. If the rules and regulations do not meet these requirements, they shall be unenforceable and may be raised as an affirmative defense in an eviction action based upon a violation of those provisions.49
4. Late Charges: A manufactured home owner cannot be charged a late fee unless the payment is not received within ten days after the due date. The fee cannot be any more than 5% of the delinquent payment.50
5. Grounds for Eviction: New York law provides specified grounds upon which, and only upon which, a manufactured park owner may evict a tenant. They are:
a. Possession after expiration of the term.
b. Non-payment of rent
c. The premise is used for “lewd purposes,” prostitution, or for any illegal trade or business.
d. The tenant is violating a federal, state or local law or ordinance which may be deemed detrimental to the safety and welfare of other tenants.
e. The tenant is violating a lease provision.
f. The park owner proposes a change in the use of the land compromising the park or a portion thereof
6. Non-payment of Rent Provisions: In order to evict a park owner for non-payment of rent, the park owner must make a demand of rent with at least thirty days written notice. The action must be terminated upon the acceptance of the late rent along with allowable costs.51
7. Violation of a Lease Regulation: In order to evict a tenant for the violation of a lease provision, the park owner must provide written notice of the violation of the lease rule or regulation which sets forth the lease term or rule or regulation violated and instructs the tenant to correct or cease the violation within 10 days. If the violation continues after the 10 day period, or if the tenant is deemed a persistent violator of the lease term or rules or regulations, then the park owner may serve a written thirty day notice directing the tenant vacate the premises.52
8. Change in Use of Land: In the event that there is a change in the use of the land of the park, the home owner must be given written notice of the change and the owner’s need to secure other accommodations. The park owner must provide all owners who will be required to secure other accommodations notice at the same time. Eviction proceedings may not be commenced less than six months from the date of service of the proposed change in use or the end of the lease term, whichever is later.53
9. Warrant of Eviction: There are different notice provisions for the warrant depending on the basis for the eviction:54
a. Generally, the warrant must give at least 90 days’ notice, in writing and in the manner prescribed for service of a notice of petition.
b. The court may order that the warrant provide only 30 days written notice if the conditions resulting in the eviction post an imminent threat to the health, safety, or welfare of other tenants.
c. The court must require that that the warrant be delivered with at least 30 days written notice if the cause of the eviction is non-payment of rent.
d. If warrant must provide at least 72 hour written notice when the manufactured home park tenant rents the manufactured home (i.e., does not own the manufactured home) in a manufactured home park.
10. Abandonment: Effective 1/2/2009, the following procedure will be used to remove an abandoned manufactured home from a manufactured home park: 55
a. A park owner may commence a special proceeding (petition) to obtain a court order granting a declaration that the mobile home has been abandoned upon proof of all of the following:
i. the home has been vacant for at least 180 days OR the home has been vacant for 90 days after a warrant has been issued;
ii. the home owner has been in default of rent for such period;
iii. the park owner has notified all known lien holders;
1. prior to proceeding commencement, the park owner caused a search to be done for homes constructed after 7/1/1994 or homes constructed 1/1/1994 with no model year, search DMV records, and for all other homes search UCC.
iv. Two of following must apply:
1. the home owner has removed substantially all their personal property;
2. utility service to the home has been terminated/disconnected by utility provider or home owner for at least 60 days;
3. the home is in substantial disrepair and uninhabitable; or
4. other objective evidence of abandonment that the court finds reliable.
b. Must be served in same manner as a summons and served on home owner at least
30 days prior to hearing date. Proof of service must then be filed with court.
c. Court can then issue a warrant directing to remove home within 30 days of the warrant. The cost of moving and subsequent destruction of the home is a cost the park owner must bear.
d. The Court may provide an alternate disposition of the home including destruction or sale. If sold, any excess over amount owed to park owner must be provided to home owner.
e. Any household goods left in home must be stored for not less than 3 months after court order issued by park owner. These costs can be recovered from the tenant. After 3 months, owner can destroy or sell the items.
Damages
1. Mitigation of Damages
a. A commercial landlord has no duty to mitigate damages.56
i. However, the landlord could have a contractual duty to mitigate damages, which will be enforced.
ii. If the landlord chooses to re-enter and relet the premises for his own purposes, the tenant is released from further liability for rent.57
b. Duty to mitigate in residential: depends on the appellate division. Case law is unclear on this as a result of the Holy Properties Court of Appeals case, which was (arguably) unclear as to whether it applied to residential leases.
i. Language: The law imposes upon a party subjected to injury from breach of contract, the duty of making reasonable exertions to minimize the injury. Leases are not subject to this general rule, however, for, unlike executory contracts, leases have been historically recognized as a present transfer of an estate in real property. Once the lease is executed, the lessee’s obligation to pay rent is fixed according to its terms and a landlord is under no obligation or duty to the tenant to relet, or attempt to relet abandoned premises in order to minimized damages.” (Citations omitted).
ii. First Department: some courts have imposed a duty to mitigate58
iii. Fourth Department: no duty to mitigate.
2. Accelerated Rent:
a. May be provided in a commercial tenant situation so long as there is a provision allowing for accelerated rent within the lease.59
b. Courts will enforce in the absence of some element of fraud, exploitive overreaching or unconscionable conduct on the part of the landlord to exploit a technical breach. The Courts will look to whether the lease provides for acceleration as a result of a breach of any of the lease’s terms, however trivial or inconsequential, and may see such a clause as an unconscionable penalty. 60
c. Duty to Mitigate in Acceleration Situations: The courts have held recently that where the lease does not require the landlord to re-rent the premises upon its recovery of possession after a default in rent and to apply the rent received from the re-renting to the benefit of the tenant, the accelerated rent clause is deemed to impose a penalty and will not be enforced.61
3. Attorneys Fees: a landlord will only be entitled to attorneys’ fees whenever there is a provision in the lease providing for such fees.62
a. But: wherever a residential lease provides that if the lease provides that the landlord may recover attorneys’ fees and/or expenses, there shall be implied in such lease a covenant by the landlord to pay to the tenant the reasonable attorneys’ fees and/or expenses incurred by the tenant as the result of the failure of the landlord to perform any covenant or agreement on its part. 63
i. Note: this only applies to residential tenants. Commercial tenants must include a provision in its lease in order to recover fees against the landlord.
ii. Note: there is a similar provision applicable for residents in a mobile home park.64
b. Tenant shall also be entitled to attorneys’ fees for the successful defense of any action or summary proceeding commenced by the landlord against the tenant. 65
i. Note: this statute cannot be waived.
c. Timing: The recovery of attorneys’ fees must be made in the action or proceeding to which it relates. Any obligation to pay counsel fees would be a corollary obligation, and must be recovered in the same action or proceeding for the recovery of possession or the payment of rent. Requesting attorneys’ fees in subsequent litigation would be an impermissible splitting of a cause of action.66
d. Practice: in Rochester, many town courts are reluctant to grant attorneys fees despite a provision in the lease and/or will simply lower the amount of attorneys fees granted. We provide an attorney affidavit at the time of the proceeding, along with a proposed Judgment of Non-Payment and Warrant of Eviction.
4. Joint and Several Liability: tenants and guarantors may be jointly and severally liable.
a. Practice: we place a provision in the lease explicitly.
Hot Topics in Landlord/Tenant
1. Death of Tenant: Death of lessee does not terminate lease.67
2. Section 8 Leasing:
a. Section 8 Program Information (as provided or available to tenants) states: A landlord cannot terminate a Section 8 lease during the initial term of the tenant except for a. a serious or repeated violation of the lease, b. a violation of federal, state or local laws which impose responsibility on you as a tenant, or c. other good cause (criminal activity is considered good cause).
i. After the initial term of the Section 8 lease, good cause can also be the failure to accept an offer of a new lease, a landlord’s desire to use the unit personally, or to convert it to non-residential use, or landlord’s desire to sell the unit, renovate it, or rent it at a higher rent.
b. Failure to Rent to Section 8 Recipient: In Buffalo, this is generally prohibited.
i. Buffalo City Code prohibits discrimination in leasing because of race, creed, color, national origin, sex, disability, familial status, marital status, age, sexual orientation, gender identity and expression, military status or source of income.68
ii. Source of Income is defined to mean payment from a lawful occupation or employment as well as other payments including but not limited to public assistance, supplemental security income, pensions, annuities, unemployment benefits, and government subsidies such as Section 8 or other housing subsidies.69
c. Please note this is not currently the law in Monroe County but may be indicative of future rulings or legislative activity (keep an eye on this).
3. Domestic Violence (Co-Tenant Disputes):70
a. In any residential lease, a tenant who has had an Order of Protection issued by a court for their benefit is permitted to terminate their lease and be released from liability to pay landlord for future rent provided
i. On 10 days notice to the landlord, that tenant seeks an order from the Court that issued the OOP, the right to terminate their lease, and
ii. Notwithstanding the OOP, there is still a risk of physical harm to the tenant or the tenant’s child from the person the OOP was issued against,
iii. The tenant attempted to get voluntary consent from the landlord, which the landlord refused, and
iv. The tenant is acting in good faith.
b. The Court will then issue an order (allowing termination of lease) provided:
i. All sums currently due through termination date are paid;
ii. Upon termination, the Premises are delivered to the Landlord and all occupants are out of the premises (tenant seeking this order is not required to ensure person against whom OOP issued is out of the property)
c. If there is an additional tenant other than OOP tenant and children, the Court will sever the lease and keep remaining co-tenants in possession (including person against whom OOP was issued).
i. Court Order must specify the termination date that is no earlier than 30
days and 150 days after the due date of the next rental payment subsequent
to the date the Order is served on landlord.
ii. Court Order is served on the landlord and any cotenants by the Court or in
a manner directed by the Court.
iii. Co-tenants and landlord can argue opposition at hearing.
d. **Cannot waive any of above by lease terms**
e. Monroe County Code: please note Monroe County Code §260-2 prohibits a landlord from refusing to lease to someone based upon their status as a victim of domestic violence or dating violence.
4. Sex Offenders:
a. A landlord cannot remove a registered sex offender who is a guest or an occupant of a tenant’s leasehold based solely on that designation.71
i. Unless perhaps his right to “restrict occupancy in order to comply with federal, state or local laws, regulations, ordinances or codes” could be construed to apply if the leasehold was located within an area which excluded sex offenders. (ex. live next to school)
b. However, a landlord has a common-law duty to take minimal precautions to protect tenants from foreseeable harm, which duty encompasses a third party’s foreseeable criminal conduct.72
i. In Knudsen v. Lax case, a level three sex offender moved into an apartment adjacent to where a family with three young daughters lived. The family vacated the premises prematurely as there was no means to protect their children from the threat of the sex offender except to remove them from the threat by vacating the apartment. “The court found that the tenants had a valid reason to request an early termination of the lease and that the constant vigilance to protect the children would place unreasonable pressure on the tenants and would destroy the peaceful and quiet enjoyment of the apartment covenanted by the lease.” Since RPL § 235-f prevented removal of the sex offender, the family was released of their liability for future rent.
c. Protection: Every rental application should ask if the applicant has been convicted of any crimes. The application should further ask them to state what the crime was that they were convicted of and when it occurred. i. Discrimination law does not include criminals. Therefore, you can discriminate against applicants based on their criminal history.
ii. In order to avoid renting apartments to sex offenders, a landlord or property manager should run a check of the sex offender registry for every applicant. Local law enforcement has the option of notifying the public about Level 2 (moderate risk) and Level 3(high risk) but cannot give out information on Level 1 (low risk) offenders. Landlords can call Meghan's Law Hotline 1-900-288-3838 from 8 am -5 pm Monday to Friday at $.50 a call.
d. Every application should also have a provision indicating that the applicant attests to the truthfulness of the information contained in the application and the lease should have a corresponding default provision that if any of the rental application turns out to be false, that it is considered an automatic default under the lease, allowing for the landlord to bring an eviction proceeding.
e. In addition, the rental application and lease should state that the landlord can evict a tenant who, in the landlord's opinion, is a threat to the health, safety, welfare and/or enjoyment of other tenants or staff.
5. Illegal Aliens: gray area of law currently.
a. NYC Code currently states: it is unlawful discriminatory practice for a lessor or owner
i. to refuse to lease a person based upon actual or perceived race, creed, color, national origin, gender, age, disability, sexual orientation, marital status, partnership status, alienage or citizenship status of such persons or because children are, may or will be residing with such person. 73
ii. NYC law provides that until a landlord is actually charged with violating federal immigration law, or is actually subject to civil or criminal penalties, it cannot maintain an eviction proceeding for illegal occupancy.74
b. US Code provides that: Any person who (iii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation; shall be punished.
c. Punishment: includes fines and not more than 10 years in jail.
d. Conclusion: based upon changing non-discrimination statutes, may be best not to discriminate based upon citizenship status alone (ie., greencard/visa/etc.) but if know that the person is an illegal alien may should notify authorities and/or not rent to person.
i. Under both, may be best to find different provision (if possible) under rental app to disqualify.
6. Senior citizens terminating lease:
a. A senior citizen can terminate a residential lease at the age of 62 years, or during the term of the lease upon which the tenant will reach 62 years, if the person (a) is no longer able to live independently and is certified as such by a physician, (b) is notified of their opportunity to move to an adult care facility, residential health care facility or housing projects.75
b. Tenant can terminate the lease by notice in writing.
c. A tenant complying with the law may be released from liability for rent accruing after the termination.
7. Military personnel:
a. Eviction: Under New York law, a landlord may not evict (or distress) a person in military service, or the spouse, children, or other dependents of a person in military service, from a premises occupied chiefly for dwelling during a period of that person’s military service, except upon leave of court. 76
i. A person who attempts to evict (or distress) a person is guilty of a misdemeanor and a fine of up to $1000 and/or one year in jail
ii. If Landlord seeks eviction, the Court may on its own motion or shall upon application by or on behalf of Defendant, stay the proceedings for a period of up to six months days or adjust the obligation under the lease to preserve the interest of all parties if the ability to pay rent is materially affected by the military service.77
1. The Court may grant the Landlord an equitable relief it finds appropriate.
b. Terminating lease: Individuals entering or called to active duty in the military service may terminate a residential lease if: (1) the lease was executed by the service member before he/she entered active duty; and (2) the leased premises has been occupied by the member or his/her dependents. Any such lease may be terminated by written notice delivered by the landlord at any time following the beginning of military service.
i. Termination of a lease requiring monthly payments is not effective until
30 days after the first date on which the next rent is due. 78
ii. Federal law allows a tenant to terminate a lease at any time after entry to military service 1. upon receipt of military orders for permanent change of station, or 2. receipt of military orders for deployment of not less than 90 days.79
c. Judgments: where Defendant (tenant) does not make an appearance, the Plaintiff must file an Affidavit of Service stating whether or not the Defendant is in the military. 80
i. If it appears Defendant is in the military, and Defendant does not appear,
Court cannot enter a judgment until Court appoints an attorney to represent the service member.
ii. If Defendant is not present, Court will grant a minimum 90 day stay on a judgment by application of counsel, or on Court’s own motion, if 1) it determines there may be a meritorious defense, and that defense cannot be presented without the presence of the Defendant; or 2) After due diligence, counsel has been unable to contact the Defendant or otherwise determine if a meritorious defense exists.
iii. If Defendant receives actual notice of the action, Defendant may request a stay of the proceeding.
iv. Default Judgments: may be set aside by request of Defendant or Court if
Defendant’s service precluded him from asserting a defense and he has a meritorious defense. Must be filed not more than 90 days after his release from military service.
v. Interest rate on a judgment of a person in military service is only 6% if was incurred before they entered active duty. Any debt incurred after were in active duty is not subject to that cap.81
8. Security Deposit
a. Landlord Prohibited from Commingling Tenants’ Security Deposits.
i. Gen Oblig. §7-103: Whenever money shall be deposited or advanced on a contract or license agreement for the use or rental of real property as security for performance of the contract or agreement or to be applied to payments upon such contract or agreement when due, such money, with interest accruing thereon, if any, until repaid or so applied, shall continue to be the money of the person making such deposit or advance and shall be held in trust by the person with whom such deposit or advance shall be made and shall not be mingled with the personal moneys or become an asset of the person receiving the same, but may be disposed of as provided in section 7-105 of this chapter.
1. Cannot commingle security deposit with other funds of the landlord.
2. If landlord breaches, landlord forfeits his right to avail himself of the deposit for any purpose. A tenant has an immediate right to the funds in the event of a commingling.82
3. Tenant’s noncompliance with the lease terms is not a defense to a landlord's breach of his security deposit duty.83
4. Landlord may commingle the security deposit with other security deposits.84
5. Interest-bearing account: if the security deposit is for the rental of property with 6 or more family dwelling units, landlord must deposit funds in an interest-bearing account.85
ii. Notify tenant where security deposit is placed: Whenever the person receiving a security deposit deposits the money in a banking organization, the landlord must notify in writing each of the persons making such security deposit, giving the name and address of the banking organization in which the deposit of security money is made, and the amount of such
deposit.86
1. Deposits in a bank must be made in a banking organization having a place of business within the state.87
2. If the landlord deposits the security deposit in an interest-bearing account, the landlord shall be entitled to receive, as an administrative expense 1% per year on the deposited funds.
3. The balance of any earned interest shall be the money of the person aking the security deposit and shall either be held in trust by the landlord until repaid or applied for the use or rental of the leased premises, or annually paid to the person making the security deposit.
iii. Cannot waive provisions: A provision in a lease requiring a tenant to waive any of the provisions of General Obligations Law §7-103 is absolutely void.88
b. Landlord must turn over security deposit upon conveyance of property, assignment of the lease or foreclosure.89
c. Apply to Unpaid Rent: a tenant cannot insist that a security deposit be used to pay unpaid rent during the term; otherwise the landlord would have no deposit protecting him against default.
i. Landlord Option: upon default, a landlord may use a security deposit as partial payment for monies due (in a judgment situation, etc.). ** We would recommend you make this security deposit provision clear on landlord’s ability to use. We would not recommend you use the security deposit while the tenant is still in the premises.
d. Use of Security Deposit Penalty Payment:
i. Lease Provision: upon default, tenant forfeits security deposit.
ii. Cannot use security deposit as penalty
iii. Purpose of security deposit in law: ensure tenants performance under lease and protect against damage to property.
iv. Exception: if is seen as a liquidated damages clause (in lieu of actual damages). Here, will only be enforced if 1. the court determines that the parties intended the full security deposit to be turned over to the landlord in place of actual damages and 2. the amount bears a reasonable relationship to the damages that have actually occurred.
v. Landlord who unlawfully retains a security deposit can be prosecuted for larceny. The Attorney General may also compel a landlord to comply with New York law and return security deposits.
EXECUTION ON JUDGMENT – WAYS TO COLLECT
1. If did not obtain a judgment when pursued eviction (lack of service, lack of appearance, or skip tenant) or after obtaining judgment, before pursuing collection, evaluate case.
Factors to consider:
a. Documentation
i. Copy of Lease
ii. Copy of any personal guaranty
iii. Copy of any checks obtained from debtor
iv. Any correspondence from debtor where acknowledge/dispute claim
v. Is there an attorney fee provision to cover costs
vi. Does the agreement provide for court costs***
b. Identify possible bars for the claim:
i. Look at SOL (6-year CPLR 213)
ii. Bankruptcy filings
iii. Other judgments
iv. Does debtor still live in state
c. Locating and identifying debtor – address/name/phone number
d. UCC-1 filings (especially for mobile homes)
2. Note: FDCPA will apply to this case. As such, a 30-day validation must be issued prior to suit (as would in Notice of Petition).
3. How to Discover Assets
a. Use of Information Subpoenas
i. CPLR 5224 allows a judgment creditor to send out information subpoenas to anyone it thinks may have knowledge which can help facilitate enforcement of a judgment. To ensure this helpful tool is not abused, the creditor or the creditor’s attorney must certify that it has a reasonable belief that the person or company receiving the subpoena has information about the debtor that would assist in the collection of the judgment.
ii. The subpoena must be served by registered or certified mail, return receipt requested, along with a prepaid return envelope.
iii. The recipient is supposed to answer the subpoena within 7 days. Remedy of not answering info subpoena is file a motion for contempt.
iv. One of the most popular and effective information subpoenas is the bank subpoena.
b. Use of Restraining Notices
i. CPLR 5222 governs the use of restraining notices.
ii. Restraining notices are basically injunctions that are usually signed by the judgment creditor’s attorney.
iii. They have to be personally served in the same manner as a summons or else served by certified mail, return receipt requested.
iv. They must include the names of all the parties to the lawsuit, the date the judgment was entered, the amount of the judgment, the name of the judgment debtor, that disobedience of the restraining notice is punishable by contempt, and contain the original signature or a copy of the original signature of the judgment creditor’s attorney.
v. CPLR 5222 prescribes the procedure for serving a restraining notice served upon a state agency or department.
vi. A restraining notice served upon a third party is only effective if at the time of service the third-party owes money to the judgment debtor or holds any property belonging to the judgment debtor.
vii. The restraining notice must include specific disclosures that certain property may be exempt from collection.
viii. A judgment debtor must receive a notice to judgment debtor within 4 days of the service of the restraining notice on the third party if the debtor has not received such notice of its exemption rights in the past 12 months.
ix. *** New law is effective January 1, 2009. Amends CPLR 5205, 5222, 5222-a, 5230-a, 5231, 5232. Law was amended to ensure that money judgment do not render working New Yorkers unable to care for their families’ basic needs. The new bill creates a legal procedure by which the judgment debtors are informed of which funds are exempt, and provides an opportunity for the judgment debtor to assert that the funds in his account are exempt from seizure before the account is restrained or executed against. Creditors now can only restrain funds over designated threshold levels and access non-exempt funds are procedure has run its course.
1. Basic overview would be:
a. If an account contains reasonably identifiable exempt funds (social security, social security disability, public assistance, veterans’ benefits, unemployment insurance, pension, disability, child support, workers’ comp, spousal support) that were directly deposited into their bank account within the last 45 days, then the first $2500 in the account is exempt. If $2500 or less is in the account, the restraint is deemed void and all funds remain available to the debtor. If there is more than $2500, $2500 remains available to the debtor and the balance is restrained.
b. If the account does not contain “reasonably identifiable” exempt funds, the first $1716 of the account is exempt.
This is result of math equation based upon fact that 90% of an employees’ minimum wage over last 60 day is exempt.
c. If account is restrained, a notice (very specific) has to be sent to the debtor telling them their account is restrained, and allowing them to send back that same paper, unnotarized, checking off things they allege is in the account that would render the account exempt. This is presumed true unless you file for hearing.
c. Income Executions
i. Income executions are governed by CPLR 5231 and are used to garnish 10% of a judgment debtor’s wages subject to new changes as listed previously.
ii. Income executions are served in two stages in New York. First, the income execution is sent to the sheriff of the county where the judgment debtor resides or employed if the debtor does not reside in New York but works in New York. Within 20 days of receipt the sheriff serves a copy of the income execution on the judgment debtor. This is called first stage. The judgment debtor then has 20 days in which to voluntarily comply with the income execution. Thereafter, if the debtor does not comply then the sheriff serves the debtor’s employer. This is called second stage. The employer must then begin to remit to the sheriff.
iii. The judgment debtor’s disposable weekly earnings must exceed 30 times the federal minimum hourly rate.
iv. There can only be one income execution at a time in place against the judgment debtor.
d. Installment/Lump Sum Payments (when Debtor self-employed – in lieu of an income execution).
i. Once a judgment has been entered, a judgment creditor may make a request for an installment payment order to be entered against the judgment debtor or bring a proceeding to compel a judgment debtor to deliver property or pay money to the judgment creditor.
ii. Both must be commenced by a notice of motion and served on the judgment debtor under CPLR 5225(a) and 5226.
iii. If a third party is in possession of property or money owed to the judgment debtor, in order for the judgment creditor to intervene and receive that money directly, a special proceeding must be commenced.
iv. CPLR 5225(b) and 5227 authorizes a hearing to be held to resolve any dispute between the judgment debtor, the third party and the adverse claimant.
v. The court may allow the adverse claimant to intervene in the proceeding and may determine his rights under 5239.
e. Property Executions
i. A judgment creditor can levy upon personal property and/or real property that is not exempt and owned by the judgment debtor.
ii. CPLR 5205 lists what personal property is exempt and CPLR 5206 lists what real property is exempted.
iii. The property execution must contain the date the judgment was entered, the names of the parties and the judgment debtor and the amount of the judgment.
iv. If the judgment was entered in a court other than the Supreme Court or Family Court, the execution must state the date on which a transcript of the judgment was filed in the county clerk’s office.
v. The property execution should specify the property or debt to be levied upon and should be given to the sheriff where the property or debt is to be levied.
vi. The judgment debtor is entitled to know what property is exempt from the execution
vii. If notice was not previously furnished pursuant to a restraining notice served on the judgment debtor the sheriff will send the notice to the judgment debtor within 4 days of the sheriff’s service of the execution. The judgment creditor should make sure this is done however, as it is the judgment creditor’s responsibility.
1. Personal property levy:
a. If the property is capable of seizure (i.e. car) the sheriff takes physical possession of the property and serves a copy of the execution on the person from whom he took the property. This is known as “levy by seizure”.
b. The sheriff has 60 days from receipt of the execution to seize specific personal property.
c. The judgment creditor can give the sheriff additional extensions in 60-day increments by writing a letter to the sheriff.
2. Property not capable of delivery
a. The sheriff levies upon it through service of a notice on the garnishee.
b. This is called “levy by service”.
c. Requires that the sheriff serve a property execution on the garnishee (i.e. bank) and the garnishee then transfers the property to the sheriff.
d. A property execution pursuant to levy by service is good for 90 days from the date the garnishee receive sit.
e. If the garnishee has not complied and the 90 days is about to expire, the judgment creditor must either file a special proceeding before the 90 days to compel the garnishee to cooperate or file a motion before the 90 days expires to ask the court for more time.
4. Turnover Orders
a. There may be instances where the judgment debtor or third-party garnishee is not cooperating and has refused to comply with a property execution. In that case a turnover order is necessary
b. Commenced by a special proceeding, which means a notice of petition and petition must be filed.
c. If a debtor has a joint bank account with another person, banks will usually restrain the account but not release the funds without a court order given the nature of the account.
d. Sometimes a debtor has transferred property to a third-party for concealment and a special proceeding would be brought to compel its return.
5. Judgment Liens
a. A judgment awarded in any of the supreme courts of New York is automatically docketed with the county clerk of the court of entry and becomes a lien against real property.
1 NY RPAPL §853.
2 O’Hara v. Bishop, 256 A.D.2d 983 (1998)
3 NY RPAPL §701.
4 RPL §232-b
5 RPL §233(b)(2)
6 RPL §713
7 RPL §735
8 In re Rodelli Sr. v. McArthur’s Inc., 243 A.D.2d 1040 (3rd Dept. 1997); Columbus Prop. Inc. v. I S K S Realty Corp., 163 Misc.2d 446 (Civ. Ct. New York County 1994).
9 Monogram Credit Bank of Georgia v. Matu, 195 Misc.2d 96 (New York County 2002); Derrie v. Hunter, 183
Misc.2d 336 (Sup. Ct. Appellate Term 2000), Arrey v. Beaut Arts II, LLC, 101 F.SAupp.2d 225 (S.D.N.Y. 2000)
10 RPL §232-c
11 Earl v. Nalley, 273 A.D.451 (3rd Dept. 1948).
12 RPL§ 232-c.
13 NY RPL §232-b.
14 Perrotta v. Western Regional Off-Track Betting Corp., 98 A.D.2d 1 (4th Dept. 1983).
15 NY RPAPL §735(1)
16 NY RPAPL §735(2)
17 NY RPAPL §733.
18 RPAPL §745
19 RPAPL §751(1)
20 RPAPL §751(4)
21 RPL §230.
22 RPL §223-b.
23 RPAPL §7§41, 735
24 Thomas v. Kingsland, 108 N.Y. 616 (1888).
25 Thomson/Houston Electric Co. v. Durant Land Improvement Co., 144 N.Y. 34 (1894).
26 Myers v. Burns, 35 N.Y. 269 (1866).
27 Ward v. Kelsey, 38 N.Y. 80 (1868).
28 RPL §235-b
29 Rivera v. JRJ Land Prop. Corp., 27 A.D.3d 361 (1st Dept. 2006)
30 H&R Bernstein v. Barrett, 101 Misc.2d 611 (1979). Tenant’s apartment was without water for 13 days due to
excessive fire hydrants in the area. Court held that landlord had violated warrant of habitability.
31 Parker 72nd Associates v. Issacs, 109 Misc.2d 57 (1980)
32 Kekllas v. Saddy, 88 Misc. 2d 1042 (1976). Strong pet odors in apartment.
33 McGuiness v. Jakubiak, 106 Misc. 2d 317 (1980). Flooding due to rain and latent roof defects breached warrant of
habitability.
34 Salvan v. 127 Mgmt. Corp., 101 AD2d 721 (1st Dept. 1984). Case involved widespread rodent infestation.
35 Park West Management Corp. v. Mitchell, 42 N.Y.2d 316 (1979).
36 Id.
37 RPL §235-b.
38 111 East 88th Partners v. Simon, 106 Misc.2d 693 (1980).
39 Park West Management Corp. v. Mitchell, 42 N.Y.2d 316 (1979).
40 Davis v. Williams, 92 Misc.2d 1051 (1977).
41 Barash v. Pennsylvania Terminate Real Estate Corp., 26 N.Y.2d 77 (1970).
42 Bromberger v. Empire Flashlight Co., 138 Misc.2d 754 (1930).
43 Ben Har Holding Corp. v. Fox, 147 Misc. 300 (1933).
44 Milton Berlinger and Simon P. Hamelburger v. Macdonald, 149 A.D. 5 (1st Dept. 1912).
45 Humes v. Gardner, 22 Misc. 333 (1898).
46 NY RPL §233(e)(1).
47 NY RPL §233(e)(2).
48 NY RPL §233(g)(1).
49 NY RPL §233(f)(1)-(3).
50 NY RPL §233(r).
51 NY RPL §233(b)(2).
52 NY RPL §233(b)(5).
53 NY RPL §233(b)(6).
54 NY RPL §233.
55 NY RPAPL §792.
56 Holy Properties Ltd. v. Kenneth Cole Productions, Inc., 87 N.Y.2d 130 (1995).
57 Id.; Nicholas A. Cutaia, Inc. v. Buyer’s Bazaar, 224 A.D.2d 952, 954 (4th Dept. 1996).
58 Lora Equities Inc. v. Galindo, 2006 NY Slip Op 26241 (Kings County 2006); 29 Holding Corp. v. Diaz, 3
Misc.3d 808 (Bronx County 2004).
59 Long Island R.R. Co. v. Northville Industries Corp., 41 N.Y.2d 455 (1977).
60 Fifty States Management Corp. v. Pioneer Auto Parks, Inc., 46 N.Y.2d 573 (1979).
61 Ross Realty v. V&A Iron Fabricators, Inc., 5 Misc.3d 72 (Sup. Ct. App. Term. 2004).
62 U.S. Underwriters Ins. Co. v. City Club Hotel, LLC, 3 N.Y.3d 592, 597 (2004).
63 RPL §234.
64 RPL §233(o)
65 RPL §234.
66 Emery Roth & Sons v. National Kinney Corp., 44 NY2d 912 (1978); Syracuse Assocs. v. Touchette
Corp., 73 AD2d 813 (4th Dept 1979).
67 Rasch 377, Joint Properties Owners, Inc. v. Deri, 113 A.D.2d 691 (1st Dept. 1986).
68 City of Buffalo Code §154-17
69 City of Buffalo Code §154-13
70 RPL §227-c.
71 RPL §235-f
72 Knudsen v. Lax, 17 Misc.3d 350 (County Ct. Jefferson Co, 2007) citing Raghu v. 24 Realty Co., 7 A.D.2d 455
(2004).
73 NYC Code 8-107(5)
74 Recalde v. Bae Cleaners, Inc., 20 Misc.3d 827 (Sup. Ct. New York County 2008)
75 RPL §227-a.
76 N.Y. Military Law § 309.
77 N.Y. Military Law §309; see also 50 USC 531(b)(1)(A), (B).
78 N.Y. Military Law § 310.
79 50 USC §535(a).
80 50 USCS Appx §521-2.
81 50 USC §527-532.
82 LeRoy v. Sayers, 217 AD2d 63 (1st Dept 1995).
83 LeRoy v. Sayers, 217 AD2d 63 (1st Dept 1995).
84 Banking Law §237(4).
85 Gen Oblig. §7-103(2-a).
86 Gen Oblig. §7-103(2).
87 Gen Oblig. §7-103(2).
88 Gen Oblig §7-103(3).
89 Gen Oblig §7-105.