WHO DOES A LEASE REALLY PROTECT AND SHOULD YOU GIVE ONE?
I have discussed this subject with my clients hundreds of times over the years and my position has not changed. If you are a Queens landlord of residential property with less than six apartments and are not subject to regulations such as Rent Control or Rent Stabilization, you do not have to offer a lease to prospective tenants or renew a lease for tenants who already live in your building. During the almost 20 years that I have been a landlord tenant attorney representing landlords in NYC, I cannot remember a single time that a lease worked to protect a landlord in a residential setting. If you have a good tenant, you want to keep them. If you have a bad tenant, you don’t. This is true whether there is a lease in effect or not and is probably one of the most key factors in managing a small property.
Evicting Your Tenant Without a Lease
If there is no lease and you wish to evict a tenant, you can. Period. You do not have to state a reason. Your tenant must be served with a legally compliant notice that gives them an opportunity to move before you start your case. If your notice expires and they are still there, your tenants will be served and a court date set. As long as your basis for eviction is not an illegal one, there are few defenses to this kind of action and you can be almost sure of an outcome in your favor. Most of these cases are settled.
How a Lease Protects a Tenant
To save some time here, you might want to approach this the way I sometimes evaluate the list of ingredients on food at the supermarket. If I glance at it and it’s too long, I put it back. So, just on the basis of print space, you can stop now. Or…
There are generally three legal theories that allow you to evict a tenant in unregulated housing when there is a lease: non-payment, breach of a substantial obligation of the lease and nuisance. Here is a brief description of each and the steps you must take to successfully evict your tenant when there is a lease:
Non-Payment of Rent
Non-Payment of rent is clear enough, your tenant has stopped paying rent. And assume that if your tenant has stopped paying rent, they don’t have it to pay. Nonetheless, if your tenant has a lease and is not committing any other violation, you are generally limited to a non-payment proceeding in Housing Court. This kind of a case sues the tenant for the amount of rent past due and the only remedy sought is payment of that rent. This action should end in a money judgment for the amount owed and a date certain by which it must be paid. If the tenant complies with the terms of the judgment, the case is over and the tenancy continues. Let me rephrase that. After you spend the money to hire a Landlord Tenant lawyer to sue your tenant in Housing Court, suffer adjournments during which you will almost certainly not be paid (each adjournment could be anywhere from three to six weeks), pay your mortgage and utilities, including your tenant’s heat and hot water, and your tenant does finally pay you your case will be over and your tenants will be entitled to stay until the lease expires. If the lease has expired during this excruciating process you will have to start a new case to evict.
Of course, if your tenant does not pay or you negotiate a settlement, the tenant might move. If not, you will have the right to have a New York City Marshal evict your tenant. Here are a few more things that might raise an eyebrow:
1. Prior to starting the actual proceeding to go to court, the law requires that you serve your tenant with a preliminary rent demand. The content and service of the demand must strictly comply with the law or your case could be dismissed.
2. You cannot bring the action for any more than you demanded in the preliminary rent demand even if more rent has accrued.
3. After you start your non-payment proceeding in court, if your tenant does not file an Answer, you will only be able to get a judgment for possession, not for money. Whether or not that matters depends on whether a money judgment is collectible.
I’D GO BACK NOW IF I WERE YOU!
Breach of a Substantial Obligation of the Lease
What if your tenant is paying rent on time but is violating another substantial obligation of the lease? Generally, you will be required to follow the terms of the lease to give them notice of the breach and time to cure the bad behavior. If the tenant cures the breach you will not have to do anything else but the tenant will have the right to stay until the end of the lease.
If the tenant does not cure the breach, you will have to serve a notice of termination pursuant to the terms of the lease. Once the termination notice expires you or your lawyer will serve the third round of papers and go to court. After you begin a lawsuit and actually get to court it will be your burden to prove that the breach occurred. If you are successful, the court will usually give the tenant another opportunity to cure the behavior before you will be allowed to evict. And you still have the tenant. While you may think the proof is obvious, what you know and what you can prove are two different things. When is loud music too loud or how do you prove it was that tenant smoking and leaving cigarette butts in the hallway? Other tenants will rarely testify and standards of proof may be impossible to meet.
This type of action is used when your tenant is doing something over and over and over and over again that is causing what a court considers to be a nuisance. This is definitely a time when once is not enough. The procedure is much like that for breach.
Need More Convincing? What more can I say?