October 2015: Business Law

Final steps in the eviction process

Larry Covell

Larry Covell

This is the third in a three-part series concerning landlord-tenant evictions. My last column covered the proper methods of service of appropriate court papers on the tenant. It is a complicated procedure because in some circumstances, the landlord must give the tenant a predicate notice while in other situations, it is not.

In this, my final column on the topic, I will review options of the tenant and related issues of eviction.

The tenant should answer the allegations of the landlord’s petition, and the tenant may assert a counterclaim. By asserting a counterclaim the tenant is suing the landlord, and the counterclaim does not have to be an issue directly related with the landlord tenant relationship. When the tenant answers the charges in the petition, it helps the court to focus on the exact dispute between the parties. In addition, it helps preserve the rights of the tenant to sue the landlord in another court action.

Instead of answering the allegations in the landlord’s petition, the tenant may make a motion to dismiss the landlord’s case. The court will dismiss the case if there was a defect in service of required notice or if there was a defect in the notice of petition or the petition itself. If the court grants the motion, the landlord can refile the action since granting the motion to dismiss is not an adjudication on the merits of the case.

A tenant can always use the defense that the landlord violated the implied warranty of habitability. New York law provides whenever there is a residential rental relationship, the landlord is under an obligation to ensure that the premises is fit for its intended use. When a tenant asserts this defense, he or she is hoping all or part of the rent due can be reduced. These are some the complaints that courts have held to a breach of warranty of habitability: failure to provide heat or hot water for a month, an extreme odor in the water supply, mold, lead paint, and insect infestation.

A landlord should not resort to self-help eviction measures to accelerate the eviction proceedings. Activities such as turning off the utilities, locking or barricading the entrance, or removing the tenant’s belongings while the tenant is still in possession of the premises, have been determined to be illegal self-help activities. Under New York law, only a peace officer may evict tenants pursuant to court order. A landlord who violates this prevision is subject to treble damages and other sanctions in court.

A tenant may use non-delivery of the written lease as a defense. This defense arises when the tenant is told to review and sign a lease agreement with the landlord signing the agreement at some later point in time. Once the landlord signs it, a copy should be given to the tenant in order to make it a binding agreement. If the tenant is in possession of the premises and a copy of the agreement hasn’t been delivered, a court views the landlord relationship as month-to-month. If on the other hand, the landlord has not delivered a copy of the lease and the tenant does not move in by the beginning of the occupancy date, the landlord cannot enforce any part of the agreement since it is deemed by the court to be an unenforceable.

The security deposit is always a point of contention between the landlord and tenant. The security deposit is supposed to be used for any damage caused by the tenant. But, the landlord may not use the security deposit to fix ordinary wear and tear or for regular maintenance expense of the premises by the tenant. Where there is no damage and the rental agreement provides for it or by consent of the parties, the security can be used for rental arrears. Landlords are under an obligation to provide the tenant with the name and address of the banking institution where security deposit is being held.

Over the last three columns, I tried to provide a general overview of New York’s Landlord-Tenant Law. The law is extremely complicated. I did not include many of the exceptions to the law or court decision which further explain the statute. Before a landlord begins an eviction proceeding, an attorney should be consulted.

Larry Covell is a professor of business at Jefferson Community College and an attorney. Contact him at lcovell@sunyjefferson.edu. His column appears bimonthly in NNY Business.