How do I fight an eviction in New York if I feel it was unlawful due to a short eviction notice?

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Question:

When a landlord terminates a New York tenancy, how much time does the tenant have before the landlord can file for eviction? If the notice I got was too short, how can I fight it?      

 

Answer:

When landlords want to terminate a tenancy, they must give tenants termination notices, which often give the tenant a certain number of days to fix, or cure the problem (such as pay the rent), or face an eviction lawsuit. Sometimes the notice does not give the tenant a chance to save the tenancy—he must move, period.

The period of time before the landlord can file for eviction is called the “notice period.” Notice periods vary according to the reason for the termination, and whether the rental is in New York City or in the rest of the state. The periods differ according to the reason for the termination. To complicate matters further, special rules apply to rent-controlled units and those under state-wide rent stabilization.

Before you can know for sure that you got a “short” termination notice, you’ll need to know how how much notice you were entitled to get.

Ending a Month-to-Month Tenancy, Not for Cause

Month-to-month tenancies may be ended for any reason (or no reason), as long as the reason isn’t retaliatory or discriminatory. For example, a landlord can’t end a monthly tenancy because she is annoyed at her tenant’s reporting code violations, or because she’s learned that he follows a particular religion. These endings are known as “not for cause” terminations, because to prevail, the landlord need not give a reason.

Notice Periods for Tenancies Within New York City

Landlords must give 30 days’ written notice. The notice must state the exact date the tenancy will end, and warn the tenant that the landlord will begin eviction proceedings if the tenant doesn’t comply. When to serve the notice is tricky: Assuming the tenancy runs from the first day of the month, for a 30-day month, the notice must be served before the first of the month; for a 31-day month, it can be served by the first day of the month; and for February, it must be served on or before January 29. It doesn’t matter if the termination date falls on a weekend or holiday.

Notice Periods for Tenancies Outside New York City

For rentals outside NYC, landlords must give one month’s notice. The notice must state the termination date, which must be the last day of the rental term, but needn’t warn the tenant of consequences for failure to move out. The notice may be oral or in writing (and must be in writing if the rental agreement provides for written notice). For example, if rent is paid on the first of the month, the notice must be served at least one day prior to the last day of the month.

Rent Controlled and Rent Stabilized Tenancies

Landlords can terminate these tenancies only for specified reasons, or “for cause,” explained below. “Not for cause” terminations are not available.

Rent Non-payment

If tenants don’t pay the rent when it’s due, landlords for all rental types and locations can deliver a “rent demand,” which is a three-day notice to pay the rent by the end of the third day, or move out. When tenants are chronically late with the rent, landlords sometimes try to send a termination notice that does not provide for a time period to pay the rent, but these are rarely successful if the tenant has paid by the time the eviction lawsuit is heard in court.

Ending a Month-to-Month Tenancy or Lease, For Cause

Landlords may also terminate month-to-month tenancies and leases when the tenant has done something wrong or the landlord has a valid reason. Sometimes, tenants get a chance to correct the problem and stay; but for serious matters, the termination notice may simply give the tenant a certain number of days to move. Notice periods range from zero (for illegal use of the property) to one month.

For cause reasons include rent nonpayment, violation of a substantial lease obligation, illegal or immoral use, conducting or permitting a nuisance, objectionable conduct, refusal to provide access; for rent controlled and stabilized rentals only, refusal to renew a lease, non-primary residence, recovery for owner’s use, withdrawal of the unit from the market, and demolition.

Consequences of Short Notice

It’s very important for landlords to use the right notice in the circumstances, and to give the tenant the correct amount of time to either cure the problem or move out (or simply move out). But suppose your landlord gave you, a tenant living in rent controlled NYC property, ten days to move out, following your refusal to allow access to the landlord. You’re legally entitled to one month, but if the landlord sues to evict on the eleventh day, that’s short notice.

If you don’t move and provoke an eviction lawsuit, you may think that you will win, at least temporarily, because the landlord made a mistake. Unfortunately, there’s no simple answer to how a judge will handle a short notice. Some judges, but not all, will toss the landlord’s lawsuit and force him to start over, with a correct termination notice and period. This will buy you a bit of time—you can be sure the landlord will do it right next time.

If You Decide to Fight, Consult a Lawyer

If you’re planning on defending against eviction based on short notice, you must get some advice from an experienced, local lawyer, who can advise you on how judges in your area will likely treat a case like yours. Even if you decide to ultimately handle the eviction yourself, it’s worth it to consult someone who is in the trenches every day. If you learn that in a case like yours, a notice problem is not likely to result in a dismissal, you may want to adjust your strategy. On the other hand, even a short discussion with a knowledgeable lawyer may uncover other flaws in the landlord’s process that may support your wish to stay.

If you find that your case stands a good shot at being dismissed, and you want to remain even for a short while longer, you may want to stay and fight and offer your defense. Think long and hard about whether the added time will be worth the money and aggravation you’ll spend in going to court—and remember, no legal outcome is assured.

 

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