I have a tenant that Im evicting from a single family home in Hempstead, NY. No lease (month to month) He was served a thirty day notice on june 27, with a deadline of july31. Needless to say the tenant is still there living rent free. I never received any rent from June on. So now with September here, that is practically 4 months in addition to any subsequent months. This is currently a holdover. I was not going after any back rent, but since this process has started, he is set on living rent free as long as he can. I would be going after all the months since 30 day notice served. I would like to know how I can get that money he owes. Also, if he secured a lawyer, is it right/legal for them to advise tenant not to pay rent during this process? Shouldn't tenant continue paying rent?
Family Law Attorney
You have embarked on a losing proposition self helping an L&T action. You are not supposed to accept rent during the predicate notice period or else you blow the requirements of a summary holdover proceeding. A lawyer is an affordable proposition. Get one.
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Landlord / Tenant Lawyer
Dear Hempstead Landlord:
While it is prudent to forego accepting rent after serving a tenancy termination notice, the summary proceeding statute does not force the landlord to forever forebear from gaining a judgment for the unpaid rent.
The statute allows a landlord to sue for "past" rent (unpaid), use and occupancy (that came due after termination of the tenancy [in this particular case, rent due through July 31 and U & O from July 31, 2013 to date of judgment]), as long as the landlord gave notice of the intent to seek the money judgment in the holdover notice of petition, and made a request for the money judgment in the petition, as well as the judgment for possession.
If the landlord did not provide notice that a money judgment is an object of the lawsuit, then the landlord cannot usually gain a money judgment when successful in the holdover proceeding.
So if you made your papers properly you preserved your rent and use and occupancy claims for a money judgment in the holdover proceeding, and if no notice was made in the notice of petition, then likely you will not recover money in the holdover case as part of your judgment.
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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Criminal Defense Attorney
Cur your losses and hire a landlord-tenant lawyer to get the person out as fast as possible.
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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