Press-Republican

May 26, 2012

Evictions: When and how

By PENNY CLUTE, The Law and You
Press-Republican

---- — When tenants do not pay the rent or continue to live in an apartment or house after expiration of the lease, the landlord must bring a summary proceeding in City Court or Justice Court in order to evict them. 

If the judge grants the request to evict for non-payment or “holdover,” the judge will sign a warrant of eviction, which the sheriff then serves on the tenants. The tenants have three days to move out after served with the warrant, or the sheriff will forcibly remove them and their belongings.

There are very strict procedures that a landlord must follow to bring a summary proceeding, including rules about how and when different documents must be served on the tenants, as well as time frames. If these are not done correctly, the judge may have to dismiss the case, and the landlord would have to start over. People can represent themselves in evictions or hire a lawyer. There are helpful resources available online for both landlords and tenants. The Plattsburgh City Court website has a Landlord Summary Proceedings Handbook for non-payment cases, which includes forms with instructions that also can be used in any New York town or village court. Simply go to the City Court website, click on Forms, then at the bottom of the list click on Summary Proceedings Handbook.

NON-TENANT CASES

A summary proceeding is not limited to cases where there is a landlord-tenant relationship. A landlord or tenant can use that procedure to evict a “licensee” who originally moved in with the consent of the tenant, but now that permission has been revoked. Or the person may be a “squatter,” who never had permission, but is staying there and won’t leave. Other cases include if the non-tenant is committing illegal acts, has moved in unlawfully or remains in the home after foreclosure or when housing was part of employment but now the employment is terminated. However, in most circumstances, the landlord cannot evict someone who is there with the tenant’s permission.

In all non-tenant cases, the landlord can legally direct the person to move out without having a judge’s warrant. But using this “self-help” must be “peaceable.” If it is not, if there is any force or intimidation, the landlord could be ordered to pay treble damages to the person. Thus, it is very risky for a landlord to try to evict someone without going to court. It is far safer to bring a summary proceeding, which can be done with or without a lawyer by filing the correct forms with the court clerk.

IF CONSENT IS REVOKED

An eviction cannot be used against a co-owner or co-tenant. So, if both parties are on the lease or own jointly, one cannot force the other out through a summary proceeding. However, a person who is not a tenant can be evicted even if he or she originally had permission to live there. This even applies to family members, such as siblings or adult children, former intimate partners or anyone else who was allowed to move in but will not leave now that permission is revoked.

It does not matter how long the non-tenant was living there, whether they pay some bills or receive mail there. If they are not actually a tenant on the lease, then they do not have the right to stay if the rightful tenant wants them out.

A tenant who decides to revoke consent previously given should notify the person in writing that there is no longer permission to remain in the residence. Doing so in a letter is fine, but be sure to date and sign it and keep a copy. Then someone should hand it to the person you want out; it is best if you have another person do this. Even if the non-tenant will not accept the letter, your witness and the letter are proof in court that you revoked permission. 

This will provide grounds to bring an eviction, and it will also provide the basis to make a trespass complaint to the police, who can charge the person with a criminal violation for refusing to leave after being told to do so.

Penny Clute has been an attorney since 1973. She was the Clinton County district attorney from 1989 through 2001, then Plattsburgh City Court judge until she retired in January 2012.