A landlord starts a holdover case to evict a tenant or occupant from a home for reasons other than nonpayment of rent. Holdover cases can be based on the expiration of a lease or failure to comply with the lease agreement. A lease or rental agreement helps stabilize a neighborhood. It defines how renters will enjoy their homes and how owners will maintain their property, and it can even affect a neighborhood’s stability. Either party can file a lawsuit for violation of a lease.
A holdover case process entails issuing a termination notice to the tenant, filling out the appropriate petition paperwork and making payment of the filing fee of $45, serving the tenant with the papers appropriately, and going to court. Before starting a holdover case, the landlord should issue certain notices to the tenant and allow the tenant time to act. These notices differ depending on the terms of the lease and the reasons for the eviction. They include a notice of termination, a notice to quit, and a notice to cure.
Notice of termination
A notice of termination is issued at the end of tenancy and should inform the tenant of the reason for termination. It also tells the tenant when the tenant must move and that the landlord will start a case if the tenant does not move by the deadline. A notice of termination should also be issued before evicting month-to-month tenants who pay rent each month. Other cases that require a notice include eviction during a lease, regulated housing, and tenants with a Section 8 subsidy.
A landlord can evict a tenant without a reason and notice of termination when their lease expires if they didn’t have a written lease, or if the housing unit is not rent-regulated. For rent-regulated apartments, a landlord should always allow the tenant to renew their lease. If the landlord continued collecting rent after the lease expired, they should give the tenant a notice of termination before starting an eviction case.
Notice to quit
A landlord issues a notice to quit when the landlord thinks the tenant doesn’t have a right to stay in an apartment. It is issued to tenants who started living in a home without the owner’s permission such as squatters and licensees. The notice provides a deadline of ten days by which the person should move out. If the tenant does not comply, the landlord can begin a case against the tenant.
Notice to cure
A notice to cure is issued to tenants in rent-regulated apartments and mobile homes in parks when the landlord thinks the tenant is not following the lease terms. The notice informs the tenant of the violation and allows them a specified period to fix it. If the tenant does not comply, the landlord can file a case against the tenant.
Procedures involved in issuing notices to tenants
To start a holdover case, the landlord serves the tenant with court papers known as a notice of petition and petition, which inform the tenant they need to come to court and the date. If the tenant doesn’t come to court, the landlord can ask the judge for a judgment on default and evict the tenant. A tenant can return to court and stop an eviction if they have a satisfactory reason for failing to appear.
A tenant should not take rent from a tenant after the deadline in the notice of termination or a notice to quit before the case is started. If they do so, they will have to restart the eviction process. Once the case begins, the landlord/owner may take payment termed “use and occupation.” instead of rent. While a case is ongoing, a court can order a tenant to pay for “use and occupation”.
A tenant can file a counterclaim against the landlord asking the landlord to pay expenses related to the home such as repairs the tenant made.
Serving the Notice of Petition and Petition
It is important for the landlord to serve legal papers to the tenant properly. The person who serves the papers must swear that they gave the tenant the papers or otherwise served the papers in an Affidavit of Service that the landlord files with the court. A landlord can’t serve the papers but someone else who is 18 or older can serve legal papers on the tenant (personal delivery). If the petition documents are personally delivered to the plaintiff, the landlord does not need to mail them.
The papers can also be given to someone who lives or works in the home to be given to the tenant, but not a child (substituted delivery). If the process server makes two attempts to find the tenant at home without success, he or she may leave the legal papers on or under the tenant’s door (conspicuous place delivery or nail and mail). The landlord must mail the papers to the tenant if they were delivered to the tenant through substituted delivery or conspicuous place delivery.
After serving legal papers, the process server must provide proof of this (Affidavit of Service) to the court. If the process server did not serve the petition and notice of petition properly, the judge may dismiss the case without prejudice and the landlord may have to start the case over again by having the tenant served with new legal papers.
Eviction Process
During the trial, the landlord and the tenant explain their sides of the case before a judge who makes a ruling. The decision can be issued right away or delivered later on, in the mail. If the landlord prevails, the judge may order a repossession, payment of money owed, or issue a warrant for the tenant’s eviction. If the tenant prevails, the case is dismissed.
If it is proven that the tenant broke the lease, the tenant is given 30 days to cure violations. If the tenant cures any violations within this period, the tenant or landlord may inform the court to withdraw the eviction. The tenant may also request the court to allow the tenant more time to look for a place to live. However, the tenant must prove to the judge that he or she tried to find another home, or why he or she was not able to look for one.
The amount owed in the money judgment can be collected for 20 years, even after the tenant moves out or is evicted. The tenant may also appeal a judge’s order or judgment to a higher court if he or she thinks that the Judge made an error.
Marshals enforce tenant evictions in Buffalo city court. They may go to the apartment and change its lock or remove the tenant’s belongings. Before an eviction, the tenant is issued a Notice of Eviction which often gives the tenant 14 days to leave the home. A tenant can go to court and stop an eviction, postpone the eviction, or ask a judge to put the tenant back in the home if there are satisfactory reasons.
Conclusion
Holdover evictions can be difficult and costly when the landlord is at fault. Tenants are protected by the law, but carefully following legal procedures allows a landlord evict a tenant. A landlord should create a lease that meets the legal requirements of the state and county. Courts may refuse to enforce a lease or a clause they find unconscionable. It is always best to consult an attorney through the entire process to avoid losing money to avoidable lawsuits and unnecessary procedural errors.