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1. PROCEEDINGS IN THE HOUSING COURT
Question:
After A Judgment Of Possession Has Issued, How Is The Owner Restored To Possession?
Answer:
After a possessory judgment has been entered (either by stipulation or after trial) a warrant of eviction is issued by the Court. The issuance of this document technically annuls the landlord that relationship. The warrant directs the City Marshal to restore the landlord to possession.
Question:
What Are Summary Holdover Proceedings?
Answer:
These are proceedings brought by owners in the Civil Court of the City of New York against tenants (either residential or commercial) who have either committed material lease breaches or have violated certain statutes. The goal in such a proceeding is to terminate the existing tenancy and to recover possession of the unit.
Question:
What Is A Predicate Notice?
Answer:
Except in the case of a straight expiration of term, a holdover proceeding cannot be commenced unless the tenant is first served with a predicate notice. For example, when the tenant has materially breached his lease, a Notice to Cure must first be served alerting the tenant to the violation and providing him with a time to cure the breach before litigation is brought. For a statutory breach, such as a tenant’s failure to maintain the apartment as a primary residence, a Notice of Termination must be served within a specific period. Finally, for non-tenants such as licenses who are occupying the premises without the owner’s permission, a Notice of Quit must first be served.
Question:
What Are The Notice Of Petition And Petition?
Answer:
These are the documents that are the pleadings in a summary proceeding. The Notice of Petition informs the tenant where and when the proceeding will be heard, the relief sought by the landlord, and the time by which the tenant must answer. It also informs the tenant that he may interpose defenses or counterclaims. The Petition states the basis for the proceeding and sets forth legal basis for the monetary and possessory relief sought. Its contents must follow statutory requirements set forth in the Real Property Actions and Proceedings Law.
Question:
What Is An Answer?
Answer:
The answer is the tenant’s formal response to the landlord’s petition. It is required to be made (orally or in writing) within five days after service of the Petition and may contain denials, defenses and/or counterclaims against the landlord.
Question:
What Is A Stipulation Of Settlement?
Answer:
Many proceedings are settled by a written stipulation. Generally, in a summary non-payment proceeding, the tenant either consents to a judgment and gets time to pay off the arrears or just agrees to a “pay-out” schedule in consideration for the landlord doing certain things such as making repairs. In a summary holdover proceeding, the stipulation may provide for the entry of a judgment of possession that can be vacated if the tenant cures within a certain period of time.
Question:
What Must Be Shown At A Trial?
Answer:
Where the case cannot be settled by a stipulation, a trial must be held. In a non-payment proceeding, the landlord has the burden of proving certain technical elements as well as the amount of the arrears and the tenant has the burden of proving that he has viable defenses to landlord’s claims for arrears. In a holdover proceeding, the landlord must establish certain technical elements and prove that the tenant has violated the lease or the statute as the case may be. If the landlord carries this burden, the tenant must then prove his defense. Notably, in a residential breach of lease holdover, even if the landlord secures a judgment, the tenant still has a statutory ten-day period to cure the breach and thereby preserve his tenancy. This does not apply to commercial tenancies, however.
Question:
What Is An Article 7A Proceeding?
Answer:
This is a proceeding commenced by either one-third of the tenants in a building or by the Commissioner of HPD to compel the correction of conditions dangerous to the life, health and safety of the building’s population. The Court may, and often does, appoint an Article 7A “administrator” who is given the responsibility to correct the existing violations. Under this circumstance, management is wrested from the owner.
Question:
What Is An HP Proceeding?
Answer:
This is a proceeding brought by an individual tenant to have a landlord correct violations in his apartment. If the tenant is successful the court will compel the owner to make the necessary repairs to abate the exiting violations. Furthermore, the owner can be fined different amounts for failing to correct non-hazardous, hazardous, and immediately hazardous violations in a timely manner.
Question:
What Is The Pet Law?
Answer:
Most leases do not permit a tenant to harbor a pet without the owner’s written consent and provide that a breach of the “no-pet” covenant is a breach of a substantial obligation of tenancy sufficient to terminate the tenancy. However, the Administrative Code of the City of New York §27-2001.1(b) provides that a “no-pet” covenant in a lease is unenforceable where the owner or his agent has knowledge of a tenant’s open and notorious harboring of a pet and fails to commence legal proceedings within ninety days. This means that the Notice to Cure, Notice of Termination and the Notice of Petition and Petition must all be served within 90 days or the owner forfeits the right to enforce the “no pet” clause. The exception to the 90-day rule is when the harboring of a pet constitutes a “nuisance.”
Question:
How Does Subletting Work?
Answer:
Subletting of an apartment is governed by the statutory procedures set forth in Real Property Law §226-b. The tenant must request permission of the landlord to sublet and so long as the tenant satisfies the statutory criteria, the landlord cannot unreasonably without its consent to the request. If the landlord withholds consent and the tenant thinks it was unreasonable, the tenant can go ahead with the sublet but faces the possibility of a holdover proceeding where the court will determine whether consent was unreasonably withheld. If a tenant sublets without seeking permission, the owner can bring a holdover proceeding based upon illegal subletting. If the tenant is found to have illegally sublet, he will be afforded a ten-day post judgment period to cure and preserve the tenancy.
Question:
What Is The Roommate Law?
Answer:
The right of a tenant to share an apartment with another is governed by Real Property Law §235-f. Under the statute, a tenant can share the apartment with his immediate family, one additional occupant and the occupant’s dependent children. If there is more than one tenant on the lease, there can be more than one occupant sharing the apartment. However, the total number of the tenants and occupants cannot exceed the number of tenants listed on the lease. The tenant must inform the landlord of the additional occupant within thirty days after the occupant moves or within thirty days after the landlord makes a request.
Question:
What Happens If The Tenant Does Not Use The Apartment As Primary Residence?
Answer:
In order to obtain the benefits and protections of the Rent Stabilization and Rent Control laws, the tenant must occupy the regulated unit as his primary residence. If the tenant fails to do so, the owner can regain possession of the unit. An owner brings a holdover proceeding in the Civil Court after the timely service of a proper notice (which differs for stabilized and controlled units) and has the burden of showing that the tenant no longer has a substantial physical nexus to the apartment for actual living purposes. Unlike a breach of lease, non-primary residence is non-curable.
Question:
What Are Succession Rights?
Answer:
Both the Rent Stabilization and Rent Control Laws essentially allow for the inheritance of rent stabilized or rent controlled apartment by both “family members” and “non-family” members. Succession claims usually arise when a non-primary residence proceeding has brought against the vacated tenant of record. The person seeking succession must show that he/she primarily resided in the apartment with the tenant of record for no less than two years before the tenant permanently vacated or from the inception of the tenancy or the commencement of the relationship. When the proposed successor is disabled or a senior citizen, the “living together” requirement is reduced to one year. “Nontraditional family members” must additionally show an emotional and financial commitment and interdependence with the vacated tenant of record during the relevant period of joint occupancy.
Question:
What Is An Owner’s Use Proceeding?
Answer:
An owner does not automatically have the right to occupy a unit where there is a rent-regulated tenant already in possession. An “owner’s use” proceeding, applicable to both rent stabilized and controlled units, allows an owner to regain a unit occupied by the tenant when the owner, or individual, but not a corporation or partnership, requires the unit for his own personal family use or the personal use of an “immediate family member” of the owner. A “good faith intention” to occupy the unit as a primary residence is required for stabilized units. For rent controlled units, a more stringent “immediate and compelling” necessity test is employed. However, under both rent stabilization and rent control, recovery is not possible if the tenant in possession meets certain statutory criteria.
