New York Real Estate Lawyer Blog
Do you remember the 1990 release of Pacific Heights where the young couple renovates their home and takes a nightmare tenant who refuses to leave. Whether you are a tenant or a homeowner, these river village towns in suburban New York incubate potential problems between unrelated families living under the same roof, sharing utilities, driveways, even entrances. What a complex relationship.
At the core is the landlord’s ownership interest in the land, which may be devised, lent or leased to a tenant. In exchange for paying rent, the tenant is supposed to be able to “quietly enjoy” the “demised space” without interference from the landlord, but subject to certain basic written or unwritten rules. Sometimes the tenant fails to pay rent, or the landlord fails to provide a clean, safe, warm place to live. Both parties jealously guard their rights (their castle), and feel indignant when the other fails to live up to their end of the “bargain.”
That bargain generally comes in two forms, either with a written lease or a “month to month” tenancy. Generally, a written lease has well developed language setting forth in plain language the rent, security, term, location, and the nuances of daily living by which the landlord expects the tenant to abide. Two rules of thumb for landlords: the security should be sequestered in a separate bank account even for a two family house; and the right to retain it at the end of the lease is not a given, meaning you have to follow the rules if there is damage.
The tenant is assured the right to live at the location so long as (s)he pays rent. Two rules of thumb for the tenant: respect the property you live in; and the security is NOT the last month’s rent. Note: while written leases often obligate the tenant to pay the entire term of the lease in the even she has defaulted in paying the rent; the landlord has a responsibility to “mitigate” her losses by finding and re-letting the apartment.
When the rent goes missing, the landlord has a problem: how to get the tenant (now interloper) out from under the same roof through an “eviction.” There are two main points in any eviction– the right to recover and secure the property; and the right for a money judgment for past due (and sometimes future or “accelerated”) rent. In New York, if the tenant fails to pay rent, the landlord may evict by sending a three (3) day notice of non-payment, and commencing a non-payment proceeding in the local Justice Court (Nyack, Upper Nyack, South Nyack), or the Town of Clarkstown. The Justice Court has the power to hear any amount of damages and consider the eviction issues. A tenant may be entitled to cure the default by paying the rent and stopping the eviction.
Alternatively, assuming non-payment, or other material breach of the lease, the landlord could send a thirty (30) day notice to surrender the apartment, and may commence an eviction within very specific time frames. Assuming that the tenant has been personally served (process server) with notice (summoned) to the court, the court may issue two types of relief: a warrant of eviction; and a money judgment, plus attorneys fees and other court costs. The charges add up quickly especially if the lease permits attorneys fees, and a sheriff actually has to perform the eviction. At the end of the eviction there are two separate documents, one, a warrant, demands that the sheriff evict; and a money judgment which is subject to collection.
Sometimes tenants counter-claim or defend their obligation to pay by arguing that the landlord “constructively” evicted them by interfering with the “habitability” or quiet enjoyment of the apartment– i.e., the roof leaks, mold exists, floods prevented safe and habitable space. Generally, these issues do not rise to the level where the tenant avoids the entire lease (or obligation to pay).
The Bottom Line–pay your rent, live in harmony; avoid your rent, cause problems. The nuances of the battle become more piqued if you are also living under the same roof. Good luck.