A landlord may bring holdover eviction proceedings against any person who is occupying his or her premises in violation of the law. This can include:

· Squatters – Occupants who unlawfully inhabit property—often uninhabited buildings or unused land—without the owner’s or landlord’s permission or consent.

· Licensees – Those who stay on the property with the landlord’s permission, but do not pay rent

· Overcrowders – Occupants who are allowed by a tenant to stay on the leased premises, but whose presence violates the Multiple Dwelling Law guidelines for maximum number of occupants per living space

Procedurally, eviction proceedings are the same against all classes of holdover occupiers:

(1)  The landlord must issue the appropriate predicate notice(s) to the Respondent.

(2)  The landlord must then file a Notice of Petition and Petition for Holdover Eviction with the court and get a hearing date.

(3)  The landlord must cause the service of the Respondent(s) with the Notice of Petition and Petition.

(4)  The landlord must attend the court hearing and obtain a Judgment of Possession.

(5)  Once the period specified in the Judgment lapses (this varies from case to case at the discretion of the assigned judge), the landlord must obtain a Warrant of Eviction.

(6)  The landlord must then present the warrant to a sheriff, marshal, or other law enforcement officer with the legal authority to evict the Respondent.

(7)  The officer will serve the Respondent with a three-day or six-day Notice of Eviction. If the Respondent remains on the property at the end of three or six days, the officer will evict him.

While the procedure for evictions is the same, landlords must prove different legal elements for each class of holdover Respondent.

Squatters: New York state law has surprisingly strict rules for evicting squatters from premises where they have no permission to be and are not paying rent. Once a squatter has resided on the property for thirty days, however, a landlord can only evict him or her by obtaining a legal Judgment of Possession from the housing court. This requires a landlord to follow the full, detailed legal procedure of eviction, starting with a ten day Notice to Quit. (See New York Consolidated Laws, Real Property Act §711 and 713.)

Licensees: Landlords may be surprised to learn that a licensee (a person who occupies the property without paying rent, but does have the owner’s permission to do so) is treated the same as a squatter for eviction purposes. Once a landlord revokes consent for the licensee to be on the property, he must serve the Respondent licensee with a ten-day Notice to Quit, and continue the formal eviction process through the court. (New York Consolidated Laws, Real Property Act §713.)

Overcrowders: New York has codified its Multiple Dwelling Law into its state statutes.  MDL§31(6) provides that:

(1)  No room shall be occupied for sleeping purposes by more than two adults (except in Class B dwellings and dormitories). Children twelve and older are considered adults for this purpose, and two children between the ages of two and eleven count as a single adult. Children younger than two do not count toward this occupancy limit.

(2)  Every occupied room in every dwelling must have four-hundred cubic feet of air for each adult and two-hundred cubic feet of air for each child occupying the room.

(3)  Living rooms must have no fewer than sixty square feet of floor space, and be six feet wide at the narrowest point. Sleeping rooms must contain seventy-five square feet of floor space (or else they cannot be occupied by more than one adult).

Though these specifications and numerical guidelines are easy to calculate, it is difficult for a landlord to actually sustain an eviction action against a tenant who violates them. This is because case law has held that a landlord must prove that (a) a violation has actually been placed against the premises, or (b) that the landlord is actually subject to civil or criminal penalties. If these sanctions have not yet been imposed, the proceeding is premature. (JMW 75 LLC v Wielaard, 2015 NY Slip Op 50473(U). Decided on April 7, 2015 by the Supreme Court of New York, Appellate Term, First Department.)

The good news is that landlords will sustain their eviction in housing court much easier once they have an inspector’s written warning or citation. This serves as prima facia evidence of a violation, and it is nearly impossible for a tenant to contradict the official finding of a violation.

Once the written warning or violation has been issued, the landlord must serve a Notice to Cure for overcrowding tenant(s) or other violations of the lease. If the tenant fails to comply with same, then a ten-day Notice to Quit must be served upon the tenant. The landlord may then file a petition for eviction at the end of ten days, and must complete the formal eviction process through the court in order to lawfully remove the overcrowding tenant(s) from his or her property.

Prevention of Squatters, Licensees, and Overcrowders

By inspecting their properties at regular intervals, landlords can identify licensees and squatters before they establish rights to reside on the properties. (Prior to thirty days of residency, the squatter or licensee is simply a trespasser, and can be removed by law enforcement for that criminal violation.) Clear written lease terms of compliance with overcrowding laws can also prevent tenants from attempting to overcrowd. If they do, landlords have more options for eviction, as the violation of a substantial written lease term offers another legal theory by which to pursue eviction.

Let the skilled eviction attorneys at Ezratty, Ezratty and Levine protect your property and financial interests by enacting proactive strategies to prevent squatters, licensees and overcrowding. When these situations do arise, we will ensure that your eviction is completed correctly and quickly with as little expense and inconvenience as possible. Contact our firm today to learn how we can do this for you—either online or by calling us at (516) 747-5566.