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Can My landlord evict me without going to court? Sent me an eviction letter written by his own hand.

Brooklyn, NY |

Just wondering if my landlord has any grounds to evict me without going to court? I have tried several times to pay my landlord rent and he has refused any payment since March (we are now in July). In early March, i had lost my job but got a new one quickly so i was not able to pay the rent directly on the 1st of the month. When i called him to arrange a payment method, he denied it and told me that i had until June to pay him a full amount of $2,400.00 cash (doesn't make sense to me either). He has refused payment arrangements made by me on many occasions, denied my repairs (i have a hole in my bathroom ceiling), had a bug infestation due to his other tenants that i was left to fix myself and he has harassed me. I have also just found out that my basement apartment is illegal....

Attorney Answers 6

Posted

Dear Brooklyn Tenant:

Please hire an attorney as soon as possible and learn your rights as a New York tenant.

No landlord may evict without a court proceeding where the landlord succeeded in proving to the satisfaction of a Housing Court judge a proper eviction cause of action presented in a lawsuit started by the service of a notice of petition and petition.

Your landlord is clearly setting you up for some court event. Refusing a payment of rent creates a defense in favor of the tenant should the landlord ever sue for rent. Making the condition for accepting rent that the tenant pays in cash, is illegal.

So. I just read the last line in your question and that statement should have been your lead point. Why would you want to continue to live in an illegal apartment and then why would you want to voluntarily pay rent to a landlord if the landlord rented an illegal apartment. A landlord CANNOT SUE a tenant for unpaid rent if the landlord rented an "illegal apartment." That means do not force the landlord to take your rent. Right now as the law stands in New York, the landlord cannot sue or claim any legal right to recover unpaid rent from a tenant in an illegal apartment and on the other hand the law in New York at present does not give the tenant the right to recover the rent already previously paid for renting the illegal apartment.

The landlord cannot "fix" your illegal apartment in any manner that would make the apartment legal to rent or legal to live in as you described your apartment being in the building basement. Basement apartments in NYC buildings stand nearly no chance at all in becoming "legal" to rent or to live in without a vast amount of money spent by the landlord to try to gain a Certificate of Occupancy for the basement.

New York law does allow the landlord to bring an ordinary eviction proceeding where rent is not an issue and where the landlord does not ask for a rent judgment. That is a summary holdover proceeding and it is based on expiration of the lease or termination of the month to month tenancy. A month to month tenancy may be terminated by the landlord be serving on the tenant a written thirty day notice of termination of tenancy that acts to end the tenancy on the last day of a month as long as at least thirty days advance notice is provided and the notice is served in the legal method allowed by the law.

In July, a landlord could serve a month to month NYC tenant with a thirty day notice that ends the tenancy on August 31, 2013. After that day if the tenant did not move the landlord could file a petition in a summary holdover proceeding.

So forget about paying rent. Paying rent cannot make the apartment legal and if you pay the rent you will not have a court award the rent money paid back to you when the landlord brings the only legal proceeding for your eviction.

Read more at:

http://www.nyc.gov/html/hpd/html/owners/illegal-conversions.shtml

http://www.nyc.gov/html/hpd/html/tenants/how_to_report.shtml

http://www.nyc.gov/html/hpd/html/about/office-descr-property-services.shtml

http://courts.state.ny.us/COURTS/nyc/housing/answering.shtml

http://courts.state.ny.us/courts/nyc/civil/pdfs/tenantsguide.pdf

http://www.ag.ny.gov/sites/default/files/pdfs/publications/Tenant_Rights_2011.pdf

http://pubadvocate.nyc.gov/landlord-watchlist/tenant-rights

http://www.nyc.gov/html/hpd/html/tenants/tenantsrights.shtml

But most important. Get an attorney on your side. Hold on to the rent. Do not try to force the landlord to take the rent. Start to look for a legal apartment.

Good luck.

The answer provided to you is in the nature of general information. The general proposition being that you should try to avoid a bad outcome if you can.

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Asker

Posted

I did not know that the unit was illegal until i had a confrontation with my landlord outside of the house and one of the tenants who live up stairs heard/saw everything and came down to tell me (after landlord left), that the place is illegal and that has no ground to collect anything from me .

Steven Warren Smollens

Steven Warren Smollens

Posted

OK. I started and ended my answer with the same suggestion that you hire an attorney. Now that you believe your neighbor's information, you must have an attorney before you try to confirm that the apartment is illegal. If you call 311 and an inspector comes and issues a violation, the inspection may result in a follow up visit by the Department of Buildings or by the New York City Fire Department, and both agencies are authorized to issue immediate Vacate Orders. Your own landlord could turn himself in in order to have the DOB or FDNY issue an immediate vacate order. So this is now a dangerous situation for you. Yes there is a way for the landlord to get you out without going to court, but as I just pointed out that involves pointing the finger of blame back on the landlord. Basements are dangerous locations and so it is near impossible to find a means to convert to legal residential use. So you are now informed. The landlord cannot collect rent. An inspection could result in a Vacate Order, the landlord could out himself, or call in the complaint anonymously, you need an attorney. And right now, I would guess the landlord is not yet ready to spring for an attorney, if he hand-wrote the termination notice as you suggested. To an attorney that suggests the landlord is not ready for court, as if that were the goal, an attorney would prepare the notice for the landlord, and also suggests that the notice is not legally drafted and would not be useful if it were the basis for a court case. But you need a lawyer, now. Good luck.

Asker

Posted

Steven, His lawyer's information is on the letter. However, the notice itself did not come from the lawyer, the landlord just put the lawyers office information at the bottom of the letter. Where can i find a lawyer that would take my situation for the lowest fee possible?

Steven Warren Smollens

Steven Warren Smollens

Posted

OK. So the landlord has a lawyer. I provided the links to various sources where you could find more information, and the links to the Housing Court will help direct you to locating an attorney. No matter what you do though you would at the best buy time to relocate to a legal dwelling if in fact the basement apartment is illegal. So check the legal services links at the Civil (Housing) Court site. Good luck.

Posted

If you don't go voluntarily the landlord has to take you to court.

I am a former federal and State prosecutor and have been doing criminal defense work for over 16 years. I was named to the Super Lawyers list as one of the top attorneys in New York for 2012 and 2013. No more than 5 percent of the lawyers in the state are selected by Super Lawyers. Martindale-Hubbell has given me its highest rating - AV Preeminent - in the areas of Criminal Law, Personal Injury, and Litigation. According to Martindale-Hubbell”AV Preeminent is a significant rating accomplishment - a testament to the fact that a lawyer's peers rank him or her at the highest level of professional excellence." Fewer than 8% of attorneys achieve an AV Preeminent rating. I also have the highest ranking – “superb” – on Avvo. The above answer, and any follow up comments or emails is for informational purposes only and not meant as legal advice.

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Asker

Posted

Even if the basement apartment is illegal?

Eric Edward Rothstein

Eric Edward Rothstein

Posted

If the basement is an illegal apartment (and you are sure it is) you are in the driver's seat. The landlord can evict you but cannot collect back rent. You can live rent free until you are evicted.

Asker

Posted

Thank you so much for this information. This landlord has had me very scared with his threats against me and my child.

Posted

No, New York does not allow for self help evicitions. Your landlord must go to court and must give you proper written notice meeting strict minimum timeframes to get someone evicted. Only the court can order an evicition and only the sheriff can enforce a warrant to evict. I suggest you take any letters you get from your landlord to an attorney to review and respond to if necessary.

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Posted

Your landlord may not engage in self help under any circumstances in a residential tenancy; he must take you to court.

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Posted

No your landlord may not evict you without going to court. As my colleague stated, NYS does not allow for self help evictions. You should consult with a landlord tenant attorney in your area. Most attorneys offer free consultations prior to accepting your case.

If you found this "helpful" or "best answer," please click it with my appreciation. This response does not constitute legal advice and does not create an attorney client relationship. Thank you and good luck.

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Posted

Assuming the apartment is a legal one, the landlord is allowed to make a 3 day demand that you pay the unpaid rent or quit the premises. If you don't pay, the landlord is within his or her rights to commence summary eviction proceedings in a court.

You can't get along with the landlord, there are repair issues, and the basement apartment might not have the blessing of the Building Department. Why not just leave?

This communication is intended only to provide general information. No attorney-client relationship is created.

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Steven Warren Smollens

Steven Warren Smollens

Posted

Hello. The last line in the tenant's question said the apartment is in the basement and is illegal. I noticed that piece of information when I already had a head of steam going on my response and changed direction.

Asker

Posted

The only reason that i am a bit clueless when it comes to my tenant rights in NYC, is because i am not from here. I am originally from Miami, FL and have been living here for a year. I am trying to leave as soon as i can but it has been difficult as everything in my area of Brooklyn is so expensive. On another note, There is no lease. All i have to stand on legally (i believe) is rent receipts with his signatures and mail that comes here. I do not want to stay here any longer, but i have no choice.

Steven Warren Smollens

Steven Warren Smollens

Posted

OK. Being a tenant does not really add any rights to staying in the apartment if the apartment is illegal. On another note, most persons are not aware of their legal rights, and so, you are not alone. Your stand on being a tenant does not add to a defense to keep the basement apartment if it is "illegal" and paying the landlord rent for an illegal apartment when the landlord wants to evict you to avoid government fines and penalties and perhaps even prosecution by the NYC DOB for renting an apartment without a legal right. You could check out what the City may know about your building at the DOB site and at the HPD site. You may find that violations were issued for the apartment in the basement. You will get stuck maybe being forced out by the City or the Fire Department so you have a choice, even if not perfect, and that is to take the money you saved by not paying rent and finding a safe and legal home.

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