Evictions - The Last Resort
When a tenant is not paying the rent, and won’t vacate the premises; when you are losing money, have lost your patience, your anxiety levels have risen, and as a last resort, you must exercise your option of eviction, there are a few legal things you should know.
The eviction process is fairly straightforward but most landlords dread having to go through it, and understandably so. Maybe it’s because they don’t understand the process or what to expect, and maybe it’s because they’ve heard horror stories about the courts’ tendency to be pro-tenant. But let’s face it- a lack of income can cause a great deal of stress. When you need to remedy this problem, you have to know the law and follow it. So once again, knowledge is the key. Even if you hire an attorney or retain other legal assistance, it never hurts to understand the process.
There are two types of legal evictions: Non-payment – when a tenant is not paying the rent, and a Holdover- which is done to take back possession of the premises for any reason other than non-payment. Stay away from the other way called “self help” eviction. It is totally illegal. I will elaborate more on that later, but for now, let’s examine the procedure for non-payment evictions, since that is the most common type.
A landlord can’t proceed with an eviction or get a judgment for possession of the property without terminating the tenancy first. This is done by going to court and proving that the tenant did something wrong that justifies ending the tenancy. In these parts, it means that the tenant must be given adequate written notice in a specified way and form. The most commonly used form is the“3-Day Notice to Pay Rent or Quit”. This brings us to the first step:
1. Give the tenant a “3-Day Notice”. This is a written
demand for the rent that satisfies the state law for you to do so. If the tenant does not pay, the landlord may proceed to the next step and begin a court proceeding.
2. Serve the tenant with a “Notice of Petition” and a
“Petition”. These are 2 separate documents that are
served at the same time. Once the papers are
prepared, you must file them at your local courthouse. There is a filing fee and some courts do not accept cash, so check with them before you go.
The Notice of Petition states the time and date to appear in court, the court’s address and the name, address and phone number of your attorney ( if one is used).
The Petition contains all the other pertinent information such as the name of the person or corporation bringing the proceeding and their relationship to the building, the name of the tenant, the type of lease, the date the rent is paid, the address of the premises (including the apartment number), the amount of rent due, if the tenant is still in possession, whether or not a 3-day notice was served, and the relief requested which includes final judgment of possession, warrant to evict, judgment for rent arrears, court filing costs, and attorney’s fees if provisions were made for either party in the lease.
These documents are usually served upon the tenant by a process server, a Marshal, or a Westchester County Sheriff.
3. The Affidavit of Service is prepared by the process server and filed with the court.
The tenant must receive notice of the court proceeding not less than 5 days and not more than12 days before the day to appear in court. There are 3 ways to serve the Notice and Petition:
A.) Personal Service where it is handed directly to the
B.) Substituted service where it is given to a person
residing in the apartment of suitable age and
discretion. Additional copies must also be mailed by
both certified and regular mail.
C.) Conspicuous place service-done by affixing a copy
to the apartment door or placing a copy under the
door. Additional copies must be mailed by both
certified and regular mail.
4.The Judgment is obtained. This document is
awarded by the judge and states the relief that the
Landlord is entitled to (the amount of rent owed and the amount of costs and attorney fees, if any). In addition to the amount of money sought in the petition, money to include the current month’s rent may be granted if the landlord asks for an amendment to the petition.
5.The Warrant for Eviction must be signed by the judge. The warrant is then given to the Marshal or Sheriff to execute by evicting the tenant upon 3-days notice to the tenant. This is also known as the “72 Hour Notice”. Once the warrant is issued, the landlord-tenant relationship is ended. A landlord can reject the rent and evict the tenant. Only an Order to Show Cause signed by the court and served on the Marshal or
Sheriff and the landlord or the landlord’s attorney will
legally stop an eviction until the court hears the case.
6.The 72 Hour Notice of Eviction is given to the tenant by the Marshal before the tenant is actually evicted,
notifying them that the actual eviction is pending and will occur in no less than 72 hours.
This is only an overview of the eviction process that describes the steps of the process to give you a better understanding of what must take place and in what order it happens. It is by no means intended to give legal advice of any kind, nor is it intended to be a substitute for legal counseling. We strongly suggest you seek legal assistance if you are new to the area of eviction. Once you become familiar with the process, there is no law stating that you cannot do your own evictions. If you would like help with an eviction, the Landlord’s Association of Westchester can refer you to a qualified Para-legal or an attorney that specializes in Real Estate.
When a landlord does something(s) to force the tenant out of the property without going through the legal procedures it is called a “Self-Help” eviction. This practice is illegal and gives a tenant good grounds to sue you. Here is a partial list of self-help actions that you should not do:
• Lock the tenant out
• Turn off the utilities (water, gas, electric, etc.)
• Turn off the heat
• Threaten the tenants
• Break the windows, remove the doors, or anything else that makes the premises uninhabitable
• Harm their pets
• Clog up the sewer or septic system
• Pretend the unit is abandoned and dispose of their
• Disturb their right to quiet enjoyment
• Do anything else that would give the tenants cause to sue you
If you want the tenants out, go to court.