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Locking out commercial tenant for non-payment of rent.

Hopewell Junction, NY |

What rules apply to a commercial landlord who wishes to lock out a month-to-month commercial tenant for non-payment of rent where there is no written lease? What is the procedure, if any? I understand commercial tenants do not have the same notice rights as residential tenants. This is in Dutchess County, NY.

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Attorney answers 3

Best Answer
Posted

Dear Hopewell Junction Landlord:

Without a lease provision authorizing self-help in the event of nonpayment of rent, locking out your commercial tenant would be considered a breach of lease, void the obligation to pay rent, and subject the landlord to a lawsuit for damages by reason of the illegal eviction, breach of lease, loss of business opportunity and perhaps far more.

No New York landlord is allowed to conduct an eviction without the use of the court where there is no lease based on nonpayment of rent. Were that not the law, then no landlord would ever face the consequence of an eviction done without a court proceeding.

If you want to end the tenancy, serve a termination of tenancy notice as provided in New York Real Property Law Section 232-b, and at the end of the period set in the notice, commence the summary holdover eviction proceeding.

Or, proceed in the manner most landlords would undertake when the tenant fails to pay the rent. Serve a proper written rent demand, and on the expiration of the three day period provided in the rent demand, if the tenant does not pay or does not move, commence your summary nonpayment proceeding.

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.

James K. Lyder

James K. Lyder

Posted

What is the difference between choosing the RPL 232-b notice route or the 3 day rent demand route? Is there also a statute that governs the latter that you can point me to?

Steven Warren Smollens

Steven Warren Smollens

Posted

OK. The three day demand notice is a predicate to commencing a summary nonpayment proceeding (NY RPAPL Section 711 (2). The holdover proceeding stems from RPAPL Section 711 (1) [http://law.onecle.com/new-york/real-property-actions-proceedings/RPA0711_711.html] A landlord may prevail in a nonpayment proceeding, but the tenant may redeem the tenancy and remain in possession if the tenant pays the money judgment to the landlord before the warrant of eviction is issued. The nonpayment case is the quickest into court. The holdover must wait for the expiration of the time in the 232-b notice. If the landlord is certain that the tenant will not pay, then the landlord may prevail in the nonpayment proceeding and gain the warrant of eviction in less time than waiting for the expiration of the tenancy by the 232-b notice, and first then starting the holdover proceeding. While the summary nonpayment proceeding is a quick route to court, and may in fact lead to a quick judgment, the downside is that a landlord win, may not result in the eviction of the tenant if the tenant pays. When a landlord elects to forego the rent and focus on possession only as the ultimate relief and reason for the summary proceeding, the landlord would terminate the month to month tenancy. The judgment won in the holdover proceeding is for possession (but the landlord may also include a request for a money judgment for rent owed and to become due during the proceeding.) Unlike the nonpayment proceeding, the tenant cannot redeem the tenancy and remain in possession by paying rent. Notwithstanding a judgment for money in the holdover proceeding, the landlord is able to regain possession by execution of the eviction warrant. The tenant cannot stop this as in the nonpayment proceeding by paying the money judgment or the rent owed.

James K. Lyder

James K. Lyder

Posted

That is an excellent explanation of the two different routes. Thank you.

Steven Warren Smollens

Steven Warren Smollens

Posted

OK. Thank you.

Posted

Technically speaking, New York allows for self-help eviction in a commercial leasehold, in certain situations and so long as the lease provides for such a remedy, though I would hesitate to advise a client to engage in self-help due to the potential liability that may arise.. However, in this instance, you do not have a written lease. Furthermore, you cannot sue for nonpayment if there is no lease in effect, or if a tenant is month-to-month. You may only commence a holdover proceeding, and then in the context of that proceeding you may seek use and occupancy to be awarded by the Court. You really should speak to an attorney to go over the facts of your case with you and advise you, but ultimately, it would be best to commence an eviction proceeding.

Posted

Consult with a local landlord tenant lawyer to help you to legally evict the tenant without exposing you to a lawsuit to Wrongful eviction and treble damages.

If this answer is helpful, then please mark the helpful button. If this is the best answer, then please indicate it. Thanks. For further information you should see an attorney and discuss the matter completely. If you are in the New York City area, then you can reach me during normal business hours at 718 329 9500 or www.mynewyorkcitylawyer.com.