Holdover Proceedings for Eviction

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JAM66

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My Aunt (70), Uncle(76) and thier son (29) have lived in the 2nd Floor apt of a 2 family house on Staten Island New York for 21 years. It is a 3 bedroom house and I have moved in about a year ago. They have never had a lease and have paid the rent by check on time every month. Six years ago the original landlord sold the house to the current landlord.

Near the end of Oct 2001 the landlord informed my Aunt that he may be needing the Apt for his brother, who may be moving here from Albania, and inquired as to how much time she would need to move out. She told him that besides the fact that she has lived there for 21 years, she had to go for major surgery on her inner ear on Nov 15, 2001 and that she did not know how long she would need to recover and was not in the frame of mind to be able to determine such a time frame. On the Nov 20, 2001 she was sent a letter of termination for Dec 31, 2001. She told the landlord that she woould not be able to be out by that date and that she needed more time. He declined and said he would take her to court. Which he did. He did not accept rent for Jan 2002 and we were served on Jan 12 for a court date of Jan 16, 2002.

When we arrive in court the landlord's attorney approached us and wanted to try to reach a resolution via stipulation. They asked how much time we needed to move, we told them minimum of 3 months. They agreed but they wanted us to fix a bent backyard fence pole that my Uncle hit 2 years ago(which my uncle offer to fix and the landlord said was it not needed). The aslo wanted to raise the rent from 750.00 to 1100.00. We said that we would not pay an increase and that we were going to ask the judge for an adjournment to seek legal counsel. Turns out the judge dismissed the case without predjudice because the paperwork had the wrong address on it. We left off that we would tried to settle this out of court if we could reach an agreement between lawyers. We went to the legal aid society and we told they can't advise us because the case was in dismissal and we could come back when and if there is a new court date.

I have several questions:

1) In order for the landlord to restart the eviction process does he need to issue us a new letter of termination before he can get a new court date? What should we expect to happen next and in what time frame?

2) How much time does the housing judge usually grant for a tenant given these circumstances to move out?

3) I have been told that after the date of termination is past the rent is now considered Use and Occupancy, and that only the judge can decide what that will be. Is that true? If so, wha tis the usual amount and how is that determined?

4) Should we try to pay the landlord the rent for January 2002?

5) Are we better off going in front of the Judge or settling out of court?

6) Should we get an attorney? If so, can you give us a referral?

Thanks
JAM
 
Holdover additonal information

I omitted the fact that when we declined to pay the increase to 1100.00 that the landlord then lowered the amount to 950.00.

Thanks
JAM
 
Originally posted by JAM66:
1) In order for the landlord to restart the eviction process does he need to issue us a new letter of termination before he can get a new court date? What should we expect to happen next and in what time frame?

2) How much time does the housing judge usually grant for a tenant given these circumstances to move out?

3) I have been told that after the date of termination is past the rent is now considered Use and Occupancy, and that only the judge can decide what that will be. Is that true? If so, wha tis the usual amount and how is that determined?

4) Should we try to pay the landlord the rent for January 2002?

5) Are we better off going in front of the Judge or settling out of court?

6) Should we get an attorney? If so, can you give us a referral?
1. One letter of termination that is sufficient is fine. What was defective was the service to you of the court appearance. It is amusing (for you! :) ) that some party on the landlord's side couldn't get the address correct. It bought you bargaining power since the landlord will have to pay the attorney to start the whole process again, which is why you were offered a settlement.

2. You may not get a great deal of time, especially if you are a month to month tenant. Without a lease, you are usually considered to be a month to month tenant and you may be forced to leave, at most, from a 30 day period beginning on the first day of the period following the termination notice. If you started renting the house on 1/1/xx and got a notice of termination on 9/15/xx, you would have to leave 30 days from 10/1, the next 30 day period.

3. U and O is the rent due under your lease -- this is not in dispute. Since you are still living there, shouldn't you pay the current monthly rate that was agreed as your are using and occupying the property?

4. It's your decision about paying the rent, as you will owe it regardless of the circumstances. I'm not sure how much it helps, don't know all the facts of the case, whether or not the landlord wants it badly at this point, but you may want to check with the NY Dept. of Housing to see if your residence qualifies for any special treatment. If it does, you may have even more bargaining power. If not, you should think about making a deal with the landlord. In this instance it appears you have some leverage since you don't have money to pay damages to the landlord if it even ever came to it, there is no written lease so it would be difficult to say that the landlord could recover attorneys fees, and you may be out anyways the next time the landlord goes through the routine.

5. See what I said in 4, but I can't tell you what is better. An attorney reviewing your case might. All I can say is that withholding the rent may not affect your case in court but it may aid you with negotiation if you are looking to settle with the landlord. Best not to talk until you investigate your rights with the Dept. of Housing.

6. We can give you a referral (free) but a consulation will likely cost something and not be free. After all, attorneys need to make a living too! :D If legal aid will help you, then they can assist you once the case is filed again. You may want to pay an attorney for a consultation and it could be worth your while. If you are interested, please contact us privately and we can refer you to a highly experienced, affordable, private practitioner in the New York City area with whom we have worked with in Landlord-Tenant disputes with great success.
 
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