Holdover Proceedings Private Dwellings

Private Dwellings

INTRODUCTION
If you receive a paper called a Petition and a Notice of Petition Holdover, your landlord has started a "Holdover Proceeding" against you.

This is a court action in which your landlord is demanding possession of the apartment and wants to evict you. If you live in a private house, co-op or condo apartment and you do not have a lease the landlord does not have to have a reason for wanting you out of the apartment. A Holdover proceeding can be brought against a tenant even if the tenant has paid the rent.

Holdover proceedings are very serious and often involve complex issues. Try to get legal assistance as soon as you can.

A TENANT MIGHT RECEIVE A HOLDOVER IF:

Housing Not Subject to Rent Control or Rent Stabilization

  1. You live in housing that is not subject to rent control or rent regulation, for example: (a) a rented co-op, (b) a rented condo, (c) a building with less than six apartments that is not rent stabilized or rent controlled, and there is no written lease, or the written lease has expired and the landlord wants to evict you.
  2. The landlord wants to use the apartment for the landlord's family.
  3. The bank has foreclosed upon the property that you are living in, and becomes your landlord.

    4. Housing Subject to Rent Control and Rent Stabilization


  4. The apartment is not your primary residency. (You spend less than 183 days per year residing there.)
  5. You use residential space for commercial and business purposes.
  6. You are a rent stabilized tenant and refuse to sign a renewal lease when a proper lease has been offered and remain in the apartment after the current lease has expired

    7. Regulated and Unregulated Housing


  7. You violated the terms of your lease.
  8. You or your guest or family member created a public nuisance or is involved in criminal activity.
  9. You repeatedly refused to allow the landlord access to your apartment at a reasonable hour when the landlord has good reason to gain access such as in an emergency or to make repairs.
  10. You used the apartment other than what was allowed by the lease.
  11. You repeatedly failed to pay rent on time.

IMPORTANT: You should always seek advice as you receive legal papers. Never ignore papers from the Court. If you do you may be evicted. Consult a lawyer or a neighborhood housing organization as soon as possible.

PRECOMMENCEMENT PAPERS
Prior to beginning a Holdover Proceeding, there are certain papers that the landlord must first serve you with. The most common of these papers is the "30 Day Notice to Terminate," and the "10 Day Notice to Terminate." You do not need to leave your apartment by the date specified on the papers, however if you do not, then, the Holdover Proceeding will begin.

There may be a clause in your lease, (especially for Rent Stabilized Tenants,) which requires that your landlord give prior notice to you to correct any lease violations before s/he can begin a Holdover proceeding in court. This is called a " Notice to Cure," and it should state why you are being evicted and give you the opportunity to correct the problem. You may wish to seek legal information or advice in order to respond to the claims made by the landlord in the Notice to Cure.

In some cases, if the lease is expired, no notices may be required. These papers are merely notices, and not Court papers.

If your landlord does not accept the rent money after the 30 Day Period covered by the 30 Day Notice, save this money. You may be required to pay this at another point. If your landlord accepts your rent, or does not follow the above mentioned procedures, you should notify the Housing Court Judge. This may be grounds for dismissing the landlord's case. Also, if the Court find that you have violated your lease you may be given the opportunity to remedy the situation instead of being evicted.

UPON RECIEPT OF NOTICE OF PETITION HOLDOVER
When you receive a Notice of Petition , read it carefully. It will tell you when and where you must appear in court. Go to the Housing Court in the borough where your building is located (see the back of this information sheet for the address of the Housing Courts) on the date indicated on the papers, unless the papers tell you otherwise. Be ready to give your answer or defenses.

POSSIBLE DEFENSES IN A HOLDOVER PROCEEDING

Denial of the landlord's charges that you violated your lease may be your defense. Bring witnesses and evidence to the trial to prove your side of the case.

Example: Your landlord claims that your apartment is not your primary residence. You can bring to court with you any proof you have that your apartment is your primary residence, such as, notarized letters from neighbors indicating that you do live in the apartment , letters addressed to you at that address, tax forms, driver's license, car registration, bank records, or records from government agencies such as Social Security or the Human Resource Administration.

Retaliatory Eviction is against the law in some cases. If you have officially attempted to secure your rights as a tenant, and you can prove it, the landlord cannot evict you simply because of your complaints. Evidence of retaliation might include a copy of a written complaint, which you submitted to a government agency, as well as letters from your landlord threatening to evict you because of your complaints.

Example: You and your neighbors organize a tenants' meeting to discuss the poor conditions in your building. You make the flyer announcing the meeting and later you sign your name to a complaint form. Several weeks later, you find the landlord is trying to evict you claiming s/he wants the apartment for a family member. Your evidence of retaliatory eviction might include the flyer you helped write and a copy of your complaint form.

No Jurisdiction — In addition to the legal steps described above, State and City law also require every landlord to follow the regulations of various agencies. To find out whether or not the landlord has carried out all the requirements call the agency responsible for enforcement. If you discover evidence that the landlord did not follow the rules, you can ask the judge to dismiss the landlord's case on that basis.

Example: The apartment is not registered with the proper government agency.

Legal Errors — Sometimes a case may be dismissed because the landlord did not follow the laws or rules for bringing a proceeding.

Example: The legal papers were not served to you in the proper manner, or information is missing or inaccurate in the landlord's Petition.

Important: Defenses are subject to judicial discretion.

STIPULATIONS
Most cases in the Housing Court are resolved by stipulations, or binding agreements, which both sides negotiate. If you live in unregulated Housing without a written lease and are served with holdover papers, you will most likely have to move. The maximum amount of time allowed by the law is six months, however it is rare for a tenant to be able to stay in the apartment for six months. You will have to pay "use and occupancy," while staying in the apartment, before moving. Use and occupancy is an amount of money, other than rent, to be paid to the landlord until you are able to move. The specific dollar amount of use and occupancy is agreed to in Court. You should consult the 'Stipulation" Information Sheet.

TRIAL
There are serious risks in going to trial on a Holdover Proceeding, especially if you owe your landlord rent. The Judge may no longer have the discretion, if you are unable to pay the rent in five days, you'll have to move.

SUMMARY
A Holdover Proceeding is a serious matter. If the tenant loses the case or fails to appear for trial a warrant, followed by an "Eviction Notice" will be issued allowing a Marshal to evict.

Because a Holdover Proceeding is complicated, and may have serious consequences, you may want to consult with an attorney or a neighborhood housing organization for more detailed information.

If you expect to use a lawyer, you may ask the judge to "adjourn" the case so that your lawyer can attend .

This information was prepared by the City-Wide Task Force on Housing Court, Inc. We are a not- for- profit coalition of community housing organizations . This information was prepared not by attorneys but by experienced housing advocates and should not be thought of as legal advice.