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Practical Advice for Landlord/Tenant Issues – Part 3

August 2, 2012

Before a landlord can reclaim possession of leased property, he or she must terminate the tenancy. First, there must be a notice of default given, depending on the nature of the default. For example, the law requires three days notice for unpaid rent or 30 days notice to terminate a tenancy in the event of a month-to-month tenancy. In no event should a lease contain time frames greater than those that are required by the law.

Typically notice of default must be provided in writing and in accordance with the terms of the lease or if there is no lease, in accordance with the Real Property Actions and Proceedings law.

Every landlord is cautioned against forced entry or entry without a judgment of possession from a court. Forced entry is never advisable regardless of the grounds of termination and is considered a trespass and breach of quiet enjoyment. If a tenant is ejected by forceful or unlawful means a landlord can subject him or herself to damages under the Real Property Actions and Proceedings Law.

In a residential eviction for non-payment of rent, it is not permissible to bring such a proceeding for failure to pay the security deposit or in the event of damages to the premises. The landlord must demand orally or in writing the rent that is due and it must be specific in amount and time. It is always advisable that written notice be provided and that it be served as required by the law.

Typically, the other grounds that allow a landlord to terminate the lease encompass holdover, either because the term of the lease is naturally expired or because the landlord has terminated the tenancy. No notice is needed if a lease has simply ended, such as a one-year lease. However, notice is needed in the event that a landlord has terminated the lease (such as in the case of a month-to-month tenancy) or if the landlord has terminated the lease because the tenant was “objectionable” pursuant to the terms of the lease.

Assuming that the notice has been received and the tenant has done nothing more (vacated or paid in the event of a non-payment proceeding), the landlord may then serve a notice of petition and petition upon the landlord to appear in the local court with respect to the landlord’s request for a warrant of eviction. The notice of petition and petition must be served at least five but no more than twelve days before the court date and it is advisable to check with the court for the frequency and times that court is held for these matters.

The notice of petition may demand an answer and served at least eight days ahead of the court time. Landlords are cautioned against accepting any rent less than the total amount owed any time before the court appearance.

At the time of the court appearance there is certainly a right to trial in the event that there is a disagreement as to whether the tenant is in fact required to vacate. If a proceeding is brought for non-payment, no money judgment can issue against a tenant unless that tenant was personally served with the notice of petition and petition. Typically, damages, if there are any, are subject to a separate action.

The defense that the tenants typically rely on is that of service (inappropriately completed or untimely served). The fact that no demand was made for rent, the fact that payment occurred, the fact that there has been a delay in the landlord pursuing his or her remedies in light of non-payment of rent, that the premises breach the warranty of habitability such that the tenant is deprived of the use and enjoyment of the premises for which the tenant has paid rent, improper termination of the lease, tenant’s activities not a nuisance or that the eviction is retaliatory in nature (protected activities include good faith complaints at agency of health or safety violation, actions taken to enforce rental agreements and/or participation in tenants organizations; this creates a rebuttable presumption of retaliatory eviction if tenant has engaged in any of these activities in the prior six months).

Assuming that the court finds in favor of the landlord, the court will issue a judgment of possession. The warrant is then directed to the sheriff or marshal to remove the tenant upon 72 hours notice and payment of their fee.

In the event a money judgment was obtained there are typical enforcement proceedings available such as bank restraints and wage garnishment.

Foreclosure Issues

Foreclosure situations create a different set of circumstances since a lease offers no protection to a tenant whose landlord has been subject to a foreclosure action because the lease is normally subordinate or subject to the rights of the first mortgage holder. After a property is sold in foreclosure a summary proceeding for eviction may be brought after ten days’ notice has been provided to the occupant of the premises that the owner wishes to remove that occupant. An occupant can sometimes negotiate with the foreclosing lender or new owner regarding the time in terms of vacating the property but, typically speaking, there is little to no defense to a removal proceeding after foreclosure unless notice has not been provided in an appropriate manner.