UNDERSTANDING THE EVICTION PROCESS
It is not uncommon for a tenant to be told by a landlord that they must vacate their residence by a certain date. When a tenant receives this news they may be anxious, believing that they will be evicted by the date threatened by the landlord. However, a tenant cannot be evicted from premises, including their failure to pay rent, without the Sheriff, in Nassau and Suffolk Counties, or the Marshall, in New York City, executing a warrant of eviction. A warrant of eviction can only be obtained through a Court Order. In order to obtain a Court Order issuing a warrant, the landlord must engage in specific steps to commence a proceeding in Court.
Should a landlord seek to evict a tenant, ordinarily a predicate notice must be served on the tenant, although where the lease expires and the tenant remains without paying additional rent, predicate notice is not required prior to commencing a Court proceeding. For a tenant that is delinquent in their payment of rent, this would be either a written rent demand or less common, an oral demand for the rent. For a month-to-month tenant, a tenant that defaults in the terms of the lease agreement, or a squatter or licensee, other predicate notices must be served prior to the commencement of a Court proceeding. After the predicate notice is served, where applicable, and the tenant remains in the premises and has not cured their default, the landlord may file a Petition with the Court. After filing the Petition with the Court, the Petition and Notice of Petition must be served on the Tenant. These documents served on the tenant will provide the tenant with a Court date.
It is important for the tenant to appear at the Court appearance listed on the Petition in order to avoid the landlord from obtaining a default judgment and automatic issuance of the warrant of eviction. The tenant may, however, retain an attorney and have the attorney appear at the first Court appearance. The overwhelming majority of cases for eviction proceedings are settled without a trial and provides the tenant with additional time to locate a new residence and vacate their current residence. However, should the matter be unable to settle, a trial will be held and after trial, the Court may issue a warrant of eviction.
Should a landlord fail to follow the procedures of evicting a tenant, and resort to self-help by changing the locks and removing the tenant’s personal property, the landlord may be liable for treble damages, or triple the value of the tenant’s damages. Accordingly, it is important that a landlord not take matters into their own hands, and comply with the legal procedures for evicting a tenant.
Due to the procedures and the processes that a landlord must take in order to lawfully evict a tenant, when a tenant is told by their landlord that they must be out of the premises by a certain date, the tenant should be aware that absent a Court Order and Warrant of Eviction executed by the Sheriff or Marshall, they may lawfully reside in their residence. Should you require assistance with understanding your rights as a tenant, or seeking the proper means to evict a tenant, please contact The Siegel Law Firm, P.C. We offer a free thirty minute consultation and are happy to answer your questions.
The Siegel Law Firm, P.C. has served new businesses for over twenty years, including small business, non-for-profits, partnerships, corporations, and LLCs. If you are forming a business and need guidance regarding any matter related to your business, please do not hesitate to give us a call at (844) 522 – 4LAW for a FREE consultation.
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