Legal Newsletter – Martin L. Milner, Attorney at Law

An Article Prepared Exclusively For Members of Local 342 

Everyone knows that if you rent an apartment or home you must pay the rent each and every month if you’d like to continue living there.  But what happens if you can’t pay the rent (or don’t want to pay the rent because of some issue with the landlord) and the landlord wants to evict you, or, if the landlord just wants to evict you for some other reason. 

Simply failing to pay the rent does not mean the landlord can just lock you out of your apartment and throw your property out on the street.  Instead, the landlord must first send you what is known as a “Three Day Demand for Rent.”  This demand (which can be served on you or simply taped to your door) must specify which rent payments you have missed and how much you owe.  If you do not pay this amount in full within the three (3) day period, the landlord then has the right to start an eviction proceeding against you. 

Once an eviction proceeding has been started, you will be served (either personally or with the papers taped to your door) with a Notice of Petition and Petition for eviction.  The most important thing is DO NOT IGNORE THESE PAPERS!!!  The time to answer the papers is very short so you should immediately contact an attorney at Simon & Milner who is able to assist you pursuant to your legal service plan.  Regardless of the reason you didn’t pay rent, an answer should always be filed.  Very often you may have a defense that you weren’t even aware of or there may be a program to assist with the payment of your rent that you also were not aware of. Even if you do not have a good defense, putting in an Answer can buy you more time to either put together more money to pay the landlord or to find a new apartment. 

One thing that is very important to understand; sometimes people stop paying rent because the landlord is not making repairs, or the heat is not sufficient or there is some other problem with the apartment.  This is a great strategy for getting the landlord to act unless you live in a NYCHA apartment.  If you live in an a NYCHA (New York City Housing Authority) apartment, even if you have a valid reason for refusing to pay the rent (no heat, broken appliances, mold, infestation, broken elevators, etc…) withholding rent from NYCHA is a basis for NYCHA to   seek to terminate your NYCHA lease at a NYCHA administrative hearing (which is not housing court but a separate agency).  In such a case, it is not a defense that NYCHA failed to make appropriate repairs.  This is a dangerous game that many NYCHA tenants play as even if you do not lose your lease, you may still be placed on probation even though NYCHA was the one at fault.  The best, and only course of action against NYCHA if they fail to make appropriate repairs or maintain appropriate services is to file an HP (Housing Part) action in your borough’s housing court.  An HP action will result in a NYC inspector coming out to your apartment and documenting the deficiencies.  The housing court can then issue an order to NYCHA to make the necessary repairs.  If they don’t make the repairs, NYCHA can be brought back to court to enforce the order. 

If you do not live in a NYCHA apartment, withholding rent can be an effective strategy for getting the landlord to make repairs or provide services.  The landlord may start a non-payment proceeding against you seeking to evict you, but if there are repairs or services needed an attorney could argue that the landlord should have to make those repairs or provide those services prior to you paying the rent.  It is important to point out however that if you do employ this strategy to make sure to hold on to the rent payments you have skipped and do not spend them elsewhere.  If you withhold rent because of something the landlord is refusing to do and cause the landlord to take you to court, while the court could require the landlord to make the repairs before they are entitled to the money, you will be expected to pay all of the back rent in full at or before the time the landlord makes the repairs if you want to continue living in the apartment. 

Other times, you may have a perfect history of paying your rent on time but the landlord wants to evict you anyway for some other reason.  This is known as a “Holdover” eviction.  Unfortunately, if you do not have a lease, a landlord can terminate your tenancy and ask you to leave on 30 days’ notice at any time and for any reason (unless you live in a rent controlled or rent stabilized apartment, in which case the rules are much more complicated).  It is important to keep in mind however that despite what they may say a landlord cannot actually force you to leave without a court order.  We have heard from many of our clients who have been pressured by landlords (especially when they are selling their property) or even real estate brokers who tell tenants they must leave by a certain date (often times the sale date of the property).  This is simply untrue.  The new owner would be required to honor your tenancy if they bought the property while you resided there.  If you have a lease, the new owner must allow you to remain for the term of your lease.  In order to remove a tenant who does not have a lease but who is current on their rent, the landlord must first send a “Thirty day notice to terminate tenancy” to the tenant.  This can be served personally or taped to your door.  It must specify the date on which the landlord has elected to terminate your tenancy (but must be at least 30 days in the future).  If you are not out on that date, the landlord can then commence a “Holdover Proceeding” against you in order to evict you. 

Unfortunately, there are very few defenses to such a petition as in most circumstances a landlord can ask you to leave at any time if you do not have a lease.  However, a lawyer may be able to negotiate a reduction in some of the rent you do owe, a cash payment for you to leave or the right to continue to reside in the premises for a certain period of time (possibly rent free).  For these reasons, YOU SHOULD NEVER IGNORE A HOLDOVER PETITION.  An answer should always be filed. 

The best way to avoid a “holdover eviction” is to make sure you sign annual leases (or longer term leases) with your landlord every year.  Very often, tenants move into an apartment and sign a 1 year lease.  After the lease is over, the tenant continues to live there without signing a new lease.  This makes the tenant a “month-to-month” tenant and the landlord can basically evict you at any time for any reason on 30 days’ notice.  This 30 day time frame is very short when you need to find a new home, and can cause a great disruption to your life.  While many people would prefer not to sign a lease as it commits them to a particular apartment, it also can protect you because it commits the landlord to allowing you to stay (assuming you keep paying rent) for the length of the lease term.  If you ask your landlord to renew your lease 2 or 3 months before it expires you will be able to find out early whether or not your landlord is willing to let you remain for at least another year (or more).  If the landlord is not interested in signing a new lease, you will know that you may want to start looking for a new apartment.  Obviously, if you prefer not to have a long commitment, not signing a lease is a great way to avoid that, but it is very important to keep in mind that without the lease, the landlord can ask you to leave on 30 days’ notice at any time.

If you find yourself in one of these unfortunate situations, or, if you have a question regarding how to avoid finding yourself in such a situation please feel free to call Simon & Milner at (516) 561-6622.  

This newsletter was prepared by Martin L. Milner and Eric M. Milner who are both members of the NYS and NJ Bars.  This newsletter is intended to provide general information and not specific legal advice.  Individual legal problems should be discussed personally with an attorney at law.