Consumer Law, Warranties Breach of Contract (Lease)

[Lynda_Fisher]

My tenant moved into the apartment in August 2009. Since then he has bounced two checks, not paid his security (the check bounced) and has not paid his rent on time for two of the three months since the beginning of the 2-year lease. I need to take action now or it may continue for the duration of the lease.

I want to avoid Landlord Tenant Court. Is a lease considered a binding contract? Can I sue him for Breach of Contract? The lease specifically states the terms of payment for rent and security.

Thank you.

 

[fredrikklaw]

Anti Eviction Act!

A lease is very much a [binding] contract which basically conveys property rights to the lessee for the duration and the terms specified in the lease agreement, with the landlord (lessor) having a "Right of Re-entry" or "Right of Repossession" only on completion of the lease or in case of material and substantial breach of the agreement.

But the right to re-enter (repossess) your property in case of a breach by the tenant is not an automatic one; meaning you cannot just knock on his door and kick him to the curb and will have to follow landlord-tenant laws for your state in order to either bring the tenant in line or to evict him.

New York landlord-tenant laws require in the first place that an eviction be for at least one of 18 causes listed in New York's Anti Eviction Act (N.J.S.A. 2A:18-16.1), which yours is. No problem there. But, you have been remiss in giving the tenant notices of his breach and your demand to cure and your state's law requires the issuance of at least two (2) notices (Notice to Cease) before a Notice to Quit can be issued.

Your failure (or unwillingness) to serve the tenant with Notices to Cease can readily be interpreted as your implied consent to the late payments and the other breaches and violations.

So, serve the tenant one or two Notices to Cease and if no compliance is forthcoming, you can then serve him with a notice to quit (30 Days), and if he does not quit on his own accord, you can then commence an Unlawful Detainer action to evict him.

And be prepared: In the state of New York, an Unlawful Detainer action will only give possession of the property back to the landlord and does not allow demands for actual money owed, for which you will have to commence a separate action.


fredrikklaw

 

[Lynda_Fisher]

Thank you.

Via e-mail, I have been demanding that he pay his rent on time and that he pay me the security. Although it is not official, it should indicate that I have not been remiss. I have written a Notice to Cease.

Once a notice is sent twice, and he has not complied, I can send a Notice to Quit. How do I force him to move out? Do I need to go through the courts system?

 

[fredrikklaw]

Due Process!

Yes, you will eventually have to go through the court system and the appropriate legal process in order to evict the tenant and re-enter your property, all of which is so that he is afforded his day in court per the Due Process Clause of the Fifth Amendment to the U.S. Constitution.

This process is called an Unlawful Detainer action which in majority of cases is nothing more than an inconvenient window dressing and an idle ceremony to boot since your right of re-entry was vested the moment the second notice to cease was sent and that you are also certain to prevail in the action.

But the real beauty of an Unlawful Detainer action is that since it is classified as a Special Proceeding with its own unique civil procedure which hugely favors landlords as its core intent is to return the property to its rightful owner and this is how it wokrs:

In the event the tenant does not respond to the second notice to cease, you will then serve him with the Notice to Quit and if he still remains at the property after expiration of 30 days from the date of notice, you are then free to file and commencing an Unlawful Detainer action and serve the complaint on the tenant right away.

The tenant (defendant) then has only 5 business days to answer the complaint and appear in the case. If he does not answer or appear within the proscribe timeline, you can immediately apply to court for entry of default and a Default Judgment. If he does answer the complaint however, the matter will then be calendared for trial within 20 days.

Once you obtain judgment for repossession at the trial, the judge will set a date (it varies from judge to judge, but a couple of weeks or so) by which time the tenant has to be gone. Period! That is It! End of Story! A couple of sheriff deputies will go to the property at midnight on that date to make sure that the court order was complied with.

If the tenant is found on the premises one minute after midnight, he will be removed by the sheriff deputies forcibly and his personal effects placed on the sidewalk. The deputies will then padlock the door and leave and you have your property back.

Hope it goes well for you.

fredrikklaw

 

[Lynda_Fisher]

Wow. Thank you so much. This may be more steps; however, it avoids Landlord Tenant Court. That is a plus. How long does he have to cure issues after each Notice to Cease? If he doesn't respond by paying his rent and security, I imagine I'll need to take him to civil court to recoup payment? Small claims court is out because the maximum is $5000 and the amount he owes is higher than that.

He received my Notice to Cease today. How long must I wait before sending the second Notice. And then, how long before I send him the Notice to Quit. His December rent is due on the 15th along with the last installment of his security. It seems this procedure will take until about February. If he pays his rent and security on time for a month or two and then begins his late payments or bouncing checks again, do I need to start over with the Notices or is it considered a continuing situation? He could pull this for the remainder of his lease which is until August 2011. Of course, I saved the Notice on my Mac, but still.

His getting his furniture out may be his other problem. The condo requires a $1000 deposit before you can move furniture out. A percentage is returned if there is no damage to the building. I will of course inform the managing company not to allow him to move out until his check clears the bank.

I actually hope it will not come to this and that he pays up and continues to stay current. I won't renew his lease, but at least I won't need to begin the search for another tenant.

What is amazing to me is that he is a real estate broker.

Thanks again for all of your help.

 

[fredrikklaw]

If the tenant has not responded to your notice to pay rent by the time you read this message, you are basically free to initiate Landlord Tenant Proceeding in the City Court, and you would be happy to hear that the state of New York is a bit quicker in pulling the trigger than California.

The courts in California are mandated to hear such an action no sooner than 5 days and no later than 20 days from the time action is filed and the tenant is served, whereas you will find yourself in court in New York within only 12 days after the filing and service of the papers on the tenant. Other than that, the rest is a case of "I say tomato, and you say tomayyto" and these are the steps that you will need to take if you wish to go the litigation route.

As I said before, an Eviction action is a Summary Proceeding of which there are two types in the Landlord-Tenant law specific to your home state of New York. (1) Summary Non-Payment Proceeding, and (2) Summary Holdover Proceeding; yours would be of number 1 variety.


In any event, to evict this tenant and regain possession of your property, this would be the procedure;\:

Make a personal demand for the rent and other delinquencies by serving him a 3-Day Pay-or-Quit notice. The service should not be made by you, but by a person over the age of 18 who is not a party to the case. Once the 3-Day notice has been served, the person who performed the service should sign an Affidavit of Service before a notary public.

If the tenant fails to comply with the 3-Day notice and the rent owed remains unpaid, you then initiate a Landlord-Tenant Proceeding in the City Court by completing and filing the following documents:

1. NOTICE OF PETITION
This gives defendant notice of your action as well as the date, the time and the place where the hearing (trial) is going to be held. (To be no sooner than 5 days and no later than 12 days.)

2. PETITION
It is a form complaint which sets out your claims against the defendant.

You will then have to sign the completed PETITION before a Notary Public and attach it to the NOTICE OF PETITION and the 3-Day NOTICE (previously served) and file them with court with a DUPLICATE ( always have three copies). The court will sign and return to you the NOTICE OF PETITION and the PETITION which should be served on your tenant immediately.

An Affidavit of Service should be filed with the court this time within 3 days.

If he does not show up at the hearing, a default judgment will be entered and a Warrant of Eviction issued, and unless he shows up at the hearing with a bag full of cash and ready to bring all accounts current (and pay your legal fees on top) and ask for a reprieve, there will be a judgment in your favor and eviction warrant issued and within a few days he shall be gone and you will have to start with a separate suit for the monies owed.



fredrikklaw

 

[Lynda_Fisher]

The tenant responded by TELLING me he will give me post dated checks and drag out paying me until Dec.30th. The problem with this is that I heard nothing from him nor have I received the checks after I sent a reply e-mail telling him it's not acceptable, he needs to pay me now. His other post-dated check bounced; he is not trustworthy.

I don't know which will produce quicker compliance - following through with the
Notice to Cease procedure or going to Landlord Tenant Court. From what I have, they tend to be pro tenant.

What I really want is to get my money and ensure that he won't pull this stuff again and again for the remainder of his 2-year lease. He may repeat this just to annoy me.