Basics of Landlord Tenant Practice Hon

Basics of Landlord Tenant Practice Hon. Matthew J. Turner Troy City Court Troy, New York Purpose of Summary Proceeding

 It is a simple, quick, and inexpensive means of determining right of possession as between landlord and tenant (Allyn v. Markowitz, 83 Misc. 2d 250 [County Court, Rockland County 1975]).

 It is merely to determine right of immediate possession, not title (David D. Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, UCCA § 204). Summary Proceeding-Outside New York City

 UCCA § 204 states: “The court shall have jurisdiction of summary proceedings to recover possession of real property located in whole or in part within the city, to remove tenants therefrom, and to render judgment for rent due without regard to amount” Summary Proceeding-New York City

 NYCCCA §204 states:

 “The court shall have jurisdiction over summary proceedings to recover possession of real property located within the city of New York, to remove tenants therefrom, and to render judgment for rent due without regard to amount, and in such a proceeding after the court has determined that a warrant of eviction be issued, it shall not be necessary for the court to sign the warrant, but it may be signed by the clerk of said court. The court shall also have jurisdiction over special proceeding by tenants of multiple dwellings in the city of New York for judgment directing deposit of rents and the use thereof for the purpose of remedying conditions dangerous to life, health or safety, as authorized by article seven-a of the real property actions and proceedings law” Proper party

 Under RPAPL §721, the following people may bring forward a summary proceeding:

 The landlord or lessor

 The reversioner or remainderman

 The purchaser following a foreclosure sale or tax sale

 A person forcibly put out or kept out

 Among others An agent of the landlord is not a proper person

 The agent or power of attorney may not bring the action in their own name (Ferro v. Lawrence, 195 Misc. 2d 529 [App Term, 2d Dept 2002](emphasis added). Grounds for summary proceeding

 The tenant:

 Continues in possession after the expiration of the lease term; (RPAPL §711[1])

 Fails to timely pay rent; (RPAPL §711[2])

 Maintains an illegal business on the premises; RPAPL §711[5])

 Is adjudicated bankrupt; (RPAPL §711[4])

 Fails to pay agreed upon taxes or assessments; or

 Disables smoke or fire detection apparatus in certain localities (Matter of Calvi v. Knuntson, 195 AD2d 828 [3d Dept 1993]). Focus of the presentation will be on following grounds

 Holdover

 Nonpayment

 Illegal activities Holdover

 In order to maintain an action by summary proceeding, the landlord must “allege and prove that, as of the time the proceeding is commenced, the tenant remains in possession beyond the expiration of his term (see RPAPL § 711 [1]; Perrotta v. Western Regional Off-Track Betting Corp., 98 AD2d 1 [4th Dept 1983]).

 The lease period must have elapsed naturally under the terms of the agreement (In the Matter of Calvi v. Knuntson, 195 AD2d at 832).

 The landlord must not be seeking a right of reentry based on a breach of a condition of the lease (In the Matter of Watervliet Housing Authority v. Bell,262 AD2d 810 [3d Dept 1999]). Holdover

 As the summary proceeding is statutory by nature, there must be strict compliance under the statute.

 If the statutory requirements have not been followed, the court will lack jurisdiction to hear the matter (Perrotta v. Western Regional Off-Track Betting Corp., 98 AD2d at 2). Notice to terminate month to month- NYC

 Governed under Real Property Law § 232-a

 A month to month tenant must be provided with 30 days notice (prior to expiration of the term) that the landlord seeks to terminate the lease.

 Notice must be provided in the same manner as would be allowed under the law for serving a notice of petition for summary proceeding Notice to terminate month to month tenancy (outside NYC)

 A month to month tenant must be given 30 days notice prior to expiration of the lease term (Real Property Law § 232-b)

 The notice must be served according to RPAPL §735

 Personal service

 Substituted service to a person of “suitable age and discretion who resides or is employed at the property sought to be recovered”

 Nail and mail (must be mailed within one day of the nailing in a conspicuous location of the property) Filing petition with court

 “The notice of petition, or order to show cause, and petition together with proof of service thereof shall be filed with the court or clerk thereof within three days after;

 Personal delivery to respondent, when service has been made by that means, and such service shall be complete immediately upon such personal delivery; or

 Mailing to respondent, when service is made by the alternatives above provided, and such service shall be complete upon the filling of proof of service” (RPAPL § 735[2] [a][b]). Nonpayment

 When a tenant has defaulted in the payment of rent owed, the landlord must demand rent (orally or in writing) “providing the tenant with a minimum of three days to pay the rent owed or surrender possession of the premises” (545 West Company v. Schachter, 16 Misd. 3d 431, 431 [Civ Ct, NY County 2007]).

 The written notice must be definitive and unequivocal (Id.). What if landlord accepts rent?

 When the landlord accepts rent due, the right to evict is no more (L & T East 22 Realty Co., v. Earle, 192 Misd. 2d 75 [App Term, 2d Dept 2002]). Nonpayment

 A lease term may not require that a tenant deposit rent arrears prior to submitting an answer in the matter (Lipkis v. Gilmour et. al., 158 Misc. 2d 609 [App Term, 1st Dept 1993]). Nonpayment

 It is an abuse of discretion to require a tenant to submit rent arrears prior to ligation as there is “no statutory provision calling for [a] deposit” The court went on to note “the right to litigate the merits of the case was erroneously conditioned upon prepayment of the unproven amount claimed as rent” (Eversman v. Collodo, 88 Misc. 86 [App Term, 1st Dept 1976]; see also Parkway v. Washington, 97 Misc. 2d 881 [Hous Part, Civ Ct, Kings County 1979). Warranty of habitability

 Under Real Property Law 235-b [1], there is an implied warranty of habitability between the landlord and the tenant that the subject property will be;

 “fit for human habitation and for uses reasonably intended by the parties” and;

 “such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health, or safety.” Warranty of habitability

 Is an affirmative defense in a nonpayment proceeding (Park West Management Corp., v. Mitchell et.al., 47 NY2d 316 [1979]).

 “A simple finding that conditions on the lease premises are in violation of an applicable housing code does not necessarily constitute automatic breach of the warranty” (Park West Mgt.v. Mitchell, 47 NY2d 316, 327-328 [1979]). Warranty of habitability-examples breach

 Inadequate plumbing-

 foul odor from tap water, which landlord failed to remedy, supported tenant’s claim of a breach of the warranty of habitability (Newkirk v. Scala, 90 AD3d 1257 [3d Dept 2011] citing Park West Management Corp., v. Mitchell, 47 NY2d 316 [1979]).

 Failure to provide heat-

 The rent stabilized property had no heat for over five weeks, the landlord failed to address rodent infestation, or “repair conditions which were manifestly dangerous to the tenant’s health and safety” (Salvan v. 127 Management Corp., et.al., 101 AD2d 721 [1st Dept 1984]). Warranty of habitability-no breach

 Failure to provide a roll-in shower for a tenant who was a quadriplegic did not breach the warranty of habitability (Port Chester Housing Authority v. Mobley, 6 Misc. 3d 32 [App Term, 9th & 10th Jud Dists 2004](finding abatement of rent appropriate on other grounds).

 The proper measure of damages is the “difference between the fair market value of the premises if they had been as warranted, as measured by the rent reserved under the lease, and the value of the premises during the period of the breach” (Park West Mgt.v. Mitchell, 47 NY2d at 317).

 Can either be a sum of money or an off-set of the rent when the tenant has pled the affirmative defense of a breach of the warranty of habitability (Id.). Illegal activities

 In 1988, Congress passed The Anti-Drug Abuse Act which required public housing officials to use leases which would allow for the termination of a tenancy if “[a]ny criminal activity that threatens the health, safety, or right to peaceful enjoyment. . . or any drug-related activity on or off such premises. . . shall be cause for termination of tenancy.” (Department of Housing and Urban Development v. Rucker, 535 US 125, 127 [2002]).

 A tenant in public housing may be evicted for possession of marihuana, in her home, even if the tenant alleges that she was unaware of the drugs (In the Matter of Willock v. Schenectady Municipal Housing Authority, 271 AD2d 818, 819 [3d Dept. 2000]). Illegal activities

 However, if a tenant is being evicted pursuant to New York statutory law RPAPL §711[5] and §715, then the strict liability standard under Rucker does not apply. New York Housing Authority v. Grillasca, 18 Misc. 3d 524, 528 (Civ. Ct. New York County, 2007).  In Grillasca, a mentally ill tenant with an IQ of 72 pleaded guilty to Criminal Possession of a Controlled Substance in the Fourth degree and received five years of probation. Id. at 526. Thereafter, the public housing authority sought to recover possession of the property and brought an eviction proceeding pursuant to RPAPL §711[5] and §715. Id. at 525. The court held that the provisions under New York statutory law required that the petitioner show the apartment was used “‘customarily or habitually’ for an illegal trade . . . like the sale of illegal drugs.” Id. at 527. And that “a single instance of illegal drugs in the apartment, even combined with a single criminal disposition, is insufficient to prove that the apartment is habitually used for the illegal sale of drugs.” Id. Further, the petitioner is required to show that the tenant had actual knowledge of the illegal drug activity before an eviction could be ordered. Id. Illegal activities

 In Grillasca, a mentally ill tenant with an IQ of 72 pleaded guilty to Criminal Possession of a Controlled Substance in the Fourth degree and received five years of probation. Id. at 526. Thereafter, the public housing authority sought to recover possession of the property and brought an eviction proceeding pursuant to RPAPL §711[5] and §715. Id. at 525. The court held that the provisions under New York statutory law required that the petitioner show the apartment was used “‘customarily or habitually’ for an illegal trade . . . like the sale of illegal drugs.” Id. at 527. And that “a single instance of illegal drugs in the apartment, even combined with a single criminal disposition, is insufficient to prove that the apartment is habitually used for the illegal sale of drugs.” Id. Further, the petitioner is required to show that the tenant had actual knowledge of the illegal drug activity before an eviction could be ordered. Id. Illegal activities

 When a tenant has been charged with possessing a small amount of marihuana and elects to resolve the case with an Adjournment in Contemplation of Dismissal, that fact alone is insufficient to conclude that the tenant’s apartment has been “customarily or habitually” used for drug activity. 554 West 148th Street Associates LLC v. Thomas, 8 Misd. 3d 132 A, 2005 Slip Op 51139U (Sup. Ct. App. Term, New York, First Department), citing, New York Housing Authority v. Grillasca, 18 Misc. 3d 524, 528 (Civ. Ct. New York County, 2007). Illegal activities

 It should be noted that possession of small amounts of marihuana is not a crime. People v. Allen, 92 NY2d 378, 384 (1998). In 1977, the New York legislature passed the Marihuana Reform Act which “decriminalized” the possession of “[s]mall amounts of marihuana for personal use.” Id. Pursuant to Criminal Procedure Law (CPL) §170.56, a person is afforded an Adjournment in Contemplation of Dismissal after being charged, for the first time, with a Penal Law (PL) § 221.05 violation of Unlawful Possession of Marihuana. People v. Mann, 83 Misd. 2d 442, 444-445 (Nassau Dist. Ct. , 1975). Questions?