Ezratty, Ezratty & Levine LLP
New York Attorneys Handling Holdover Eviction Cases
In the New York court system, holdover cases refer to any eviction case brought for a reason other than nonpayment of rent.
· Holdover cases do not have to be brought by landlords. A tenant or subtenant named on the lease may bring a holdover eviction case against a roommate who is not named on the lease.
· Holdover cases can be brought whether or not there is a written leasehold agreement between the parties. In fact, they are often brought in cases where there is no written lease in effect and the tenant is a “month to month” tenant.
· The rights of the parties may be decided under the terms of the written lease agreement, local housing ordinances or regulations, or New York state law.
A landlord must follow specific rules and procedures to bring a holdover eviction case against a Respondent (the tenant, licensee, or a non-tenant living on the property):
(1) Typically, predicate notices must be served against the Respondent. The type of notice required depends on the nature of the tenancy and the grounds for termination.
Ø A Notice to Quit is required for a Respondent who is not paying rent to the landlord (whether a licensee who had the landlord’s permission to be there, or a squatter who does not).
Ø A ten-day Notice to Cure Substantial Violation of the Lease is required when the grounds for eviction are a tenant’s violation of a specific term of the written lease agreement. Importantly, curing the violation will defeat the eviction.
Ø A thirty-day written notice must be provided to a tenant if no written lease currently exists or a month-to-month tenancy exists.
Ø A Notice of Termination must be served to a tenant who received a Substantial Violation notice and failed to cure the violation within ten days.
(2) Once the required predicate notices have been served and the specified time has lapsed, a landlord may begin eviction proceedings by filing a Notice of Petition and Petition for Holdover Eviction with the court. The petition must specify:
Ø A description of the leased premises (including whether it is a multiple dwelling unit, and if so, whether it is registered with the Office of Code Enforcement)
Ø The interest each party has in the premises
Ø The relationship between the parties (landlord and tenant, roommates, owner, licensee, and squatter, etc.)
Ø The facts of the case
Ø The relief sought (eviction)
(3) In addition to the Petition, a landlord must file copies of the predicate notices and proof that they were served, in compliance with the statute, upon the Respondent. Proof can include an affidavit of service from a process server or third party who served the notices upon the Respondent, and typically includes non-military affidavits.
(4) The landlord must then have the Petition and Notice of Petition served upon the Respondent. Once the Affidavit of Service is completed, the landlord must return it to the clerk’s office. In some counties, the landlord must also bring a stamped Notice postcard completed with the time, date and location of the hearing. The clerk’s office will mail this to the Respondent. This procedure may vary from court to court.
(5) If the landlord is awarded a Judgment of Possession and Warrant of Eviction, then the landlord has the right to evict the tenant and take back possession of his rental property with the assistance of either a Marshal, or Sheriff. The landlord may also be given the right to collect past due rent. Occasionally, the judge may delay the move-out date to provide the tenant with sufficient time to find an alternative place to live. If the Respondent has not complied at the end of the specified period, the landlord must execute on the warrant of eviction.
(6) The landlord must give the warrant to a sheriff, marshal, or other authorized law enforcement officer, who will serve the Respondent with a six-day or 72 hour Notice of Eviction. If the Respondent remains on the premises at the end of the six days or three days, as applicable, the Marshall or Sheriff may forcibly evict him after the eviction is scheduled.
(7) In some counties, the law requires that the landlord provide for movers in case of an eviction, at the landlord’s expense. One county—Nassau County—even requires that the landlord store the tenant’s possessions for a month at the landlord’s expense.
Holdover tenancies can also refer to tenants who continue to occupy the leased premises with a landlord’s permission after their specified lease period ends. In the absence of a new, agreed-upon lease term, a month-to-month tenancy is created once the landlord collects the next month’s rent after the lease expiration. A landlord’s continued acceptance of rent payments will constitute evidence that she accepted the month-to-month tenancy.
In order to evict a month-to-month tenant, landlords must serve notice before the start of the rental period prior to intended eviction. Unless otherwise written or agreed upon, the new monthly period begins on the first of each month. (For example, if the landlord wants the tenant out by October 31, he or she must complete service no later than September 30, because the new period starts on October 1.)
If you find yourself in the position of needing to evict a holdover tenant, our skilled litigators at Ezratty, Ezratty and Levine will ensure it is completed correctly and quickly. We will help you access your premises as soon as possible so you can ensure continued and profitable occupancy. Contact us today to schedule a consultation either online or by calling our office at (516) 747-5566.