So How Does a Residential Non-Payment (Eviction) Proceeding Work Anyway?
Our clients often ask us how the landlord-tenant litigation process (or eviction proceeding) works and how long a landlord must wait before he/she is able to evict a residential tenant. We want to take this opportunity to explain the process.
Ideally, our office will begin a non-payment proceeding when a landlord advises us that a tenant is a month or two behind in rent. Waiting any longer makes it difficult for the tenant to catch up. We will then draft and serve the tenant a three-day rent demand (a prerequisite to initiating suit that gives the tenant notice of late rent and three days to pay before commencing legal action), and then commence the proceeding by drafting, filing with the court and serving the tenant a notice of petition and a petition. Said notice of petition puts the tenant on notice of the action and the need to appear in court.
On the court date, the tenant may not appear, in which case we usually obtain a judgment by default. More often than not, however, the tenant does appear in court. When the tenant appears, he/she may admit what is owed and just request that the judge allow the tenant more time to pay. Other times, the tenant raises defenses to not paying such as needing repairs in the apartment.
Depending on the judge, the court and the circumstances of the case, the judge may adjourn the case so that the landlord may inspect the apartment and complete any alleged needed repairs. (In order to avoid court adjournments, we always recommend to our clients that there be no repairs outstanding at the commencement of a nonpayment proceeding.) In most cases we are able to promptly obtain a judgment for the rent owed (plus the court limited legal fees and court costs) and a warrant of eviction. A stay of eviction is legally required by the court which is essentially a grace period which provides the tenant time to pay what is owed before the warrant can be executed. The typical stay is anywhere from five to fourteen days, again depending on the judge, court and facts of the case. Note with commercial proceedings, there is no minimum stay requirement.
Immediately following the court date, our office prepares and submits a judgment and warrant to the court for the judge’s signature along with a hearing status to the landlord to make sure they are up-to-date on the case. After the Judge signs the judgment and warrant (which could take two to five weeks depending on the court and the time of year) only then can the marshal serve the tenant with a “72-hour notice” if the tenant has not satisfied the judgment. The 72-hour notice is a final warning to the tenants that they have three days to vacate or face eviction by the marshal. As you may know, legally a tenant cannot be evicted based on unpaid legal fees and court costs if the judgment is otherwise satisfied by the end of the stay.
When a tenant does not pay what is owed in the time allotted or vacate by the stay date, he/she sometimes elects to file an “order to show cause,” which is a request to stop the eviction and have the matter reconsidered by the judge. Technically the tenant’s order to show cause should be based on a meritorious defense (a legal reason for not paying the rent). However, many judges sign the orders for almost any reason to provide the tenant extra time either to get the money to pay the landlord or to vacate. If the tenant files an order to show cause, we are required to go back into court to answer it. We usually request that the order be denied with no further stay to the tenant – this allows for the immediate eviction of the tenant. However, many judges today (even without any proof the tenant can pay the outstanding judgment) will allow the tenant another week or two before the marshal is allowed to finally evict the tenant.
As you may know, some tenants file multiple orders to show cause to continue to buy extra time and, oftentimes, judges will sign them even when there is no meritorious defense. In these cases, our office strives to obtain the shortest stays possible, so that matters can be resolved quickly.
If you have any further questions about the non-payment process, or other matters such as holdover proceedings, leases, DHCR Registrations please do not hesitate to contact our office.
Our office also provides legal services in the areas of:
-Cooperative Apartment & Condo Representation
-Property Management Company Support and Representation
-Commercial & Residential Real Estate Closings
-Civil Litigation
-Landlord & Tenant Law
-General Business Law
-DHCR Representation
-Tax Certiorari
-Zoning Issues and Variances
-Housing and Building Code Violation Matters
We practice in all local courts throughout Westchester County (including Yonkers, Mt. Vernon, White Plains, New Rochelle) Bronx County and the Metro area. For more information or to discuss the specifics of your situation, please do not hesitate to contact James G. Dibbini, Esq. at 914-965-1011 or jdibbini@dibbinilaw.com.
This James G. Dibbini & Associates, P.C. blog is a publication of James G. Dibbini & Associates, P.C. All Rights Reserved. Quotation with attribution is permitted. This newsletter offers general information and should not be taken or used as legal advice for specific situations, which depend on the evaluation of precise factual circumstances. Please note that James G. Dibbini & Associates, P.C. does not undertake to update its publications after their publication date to reflect subsequent developments. Prior results do not guarantee a similar outcome. This publication may contain attorney advertising.
