Skip to main content

What is a notice of petition holdover commercial ?

Bronx, NY |

in the notice it says i need to be in court and " petition herein for judgement against you for all past due rent and past due additional rent of the subject premises through march 11, 2013 in the amount of 13,672.51 together with the use and occupancy at the rate of 8,000.00 per month commencing march 12, 2013 and continuing ...... together with the award of attorney fees, costs and possessions. "

+ Read More

Attorney answers 4


You or your business are being evicted from commercial space. It sounds like you have remained in possession of the premises beyond the lease terms and have been failing to pay rent. If you fail to attend the hearing a default judgment will likely be entered against you and a writ of assistance granted to have you removed from the premises. You should hire counsel to advise you on how to proceed.

If you find an answer helpful please mark it as such or as the Best Answer. You have asked us to state an opinion based upon stated facts. You have not provided us with any documents, pictures, witness statements or other admissible evidence. The opinions stated are based upon general principles of law unless otherwise stated, which may or may not be applicable in your jurisdiction. Controlling law is also subject to change or reversal at any time. Any such changes may be retroactive and could significantly modify the statements and opinions expressed herein. Similarly, any change in the facts and assumptions upon which this opinion is based could modify the conclusions. We opine only as to matters expressly set forth, no opinions should be inferred as to other matters or to treatment of matters not specifically addressed. This opinion represents our best judgment as to the probable outcome of the issues discussed and is not binding on the courts or upon your adversaries. We can give no assurance that an adversary would not challenge our conclusions and prevail in the courts in a manner to cause adverse consequences. With respect to some of the matters discussed in the opinion, existing legal precedent may provide very little legal guidance. Although the opinions and views expressed are based on our best interpretations of existing law and what we believe a court would probably conclude if presented with the applicable issues, we can give no assurance that our interpretations would be followed if the issues became the subject of judicial or administrative proceedings. Realization of certain benefits described is subject to the risk that someone may challenge the treatment and that a court may sustain the challenge. Because you may bear the burden of proof required to establish a fact, the opinions expressed assume the you will undertake the effort and expense to present fully the case in support of any matter that you have asserted and an opponent might challenge. None of the advice provided here may be used to avoid tax liability, interest or penalties. If you want that level of assurance you will need employ us to perform the due diligence necessary to explore the facts and law applicable to your specific circumstances. I provide answers here to allow people to see the issue spotting, solution proposals, style of communication and analysis I may apply to factual statements.



on the original notice of termination they gave us, it says we don not have to pay rent.



we dont not have to pay rent until march 11*


I believe the claim is that your lease is up and you have not left or paid rent.

I am a former federal and State prosecutor and now handle criminal defense and personal injury/civil rights cases. Feel free to check out my web site and contact me at (212) 577-9797 or via email at I was named to the Super Lawyers list as one of the top attorneys in New York for 2012. No more than 5 percent of the lawyers in the state are selected by Super Lawyers. The above answer is for informational purposes only and not meant as legal advice.


Use and occupancy is the equivalent of rent in a holdover proceeding. They are seeking possession in the holdover and the U & O, legal fees and costs. The legal fees should be a clause in your lease. You should consult with an experienced landlord tenant lawyer to assist you.

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


Dear commercial tenant:

The point of a Notice of Petition (as required by the statute [Real Property Actions and Proceedings Law Section 731]), is to inform you of the date scheduled for the hearing on the landlord's "eviction" petition, and the time, Courthouse and Room, for the hearing, and to provide notice of the relief the landlord expects from a successful prosecution. The Notice of Petition must also inform you that you must assert an Answer in order to defend against the petition.


"***the notice of petition shall specify the time and place of the hearing on the petition and state that if respondent shall fail at such time to interpose and establish any defense that he may have, he may be precluded from asserting such defense or the claim on which it is based in any other proceeding or action.***"

Based on the information you provided, I can deduce, that your landlord claims that the lease for your business already expired, or was otherwise terminated (earlier than as provided in the lease, usually due to a claimed default of an obligation of tenancy that was not cured within the allowed time), and that notwithstanding the end of the lease, or termination of the tenancy, you kept possession of the premises and did not turnover possession to the landlord, and that as of the time of the making of the Notice of Petition the landlord claims that you owe for past due rent through March 11, and that on the day that your business became a "holdover tenant" in possession, that the landlord claims that the cost that must be paid for the holding over is $8000/month.

So that is the case. The petition expands on expressing the relief requested by setting forth the material facts necessary to establish the landlord's claim.

In a nutshell, failing to defend the lawsuit and or failing to appear in court on the hearing date, would lead to a judgment for possession in favor of the landlord, a money judgment for the past rent and for prospective use and occupancy from 3/12/13, costs, disbursements and perhaps the landlord's attorney fees, as well as a warrant of eviction to a city marshal to evict your business.

Now that you know what the landlord claims the right to evict your business and obtain a money judgment, you will need a lawyer to defend the business, prevent the eviction and prevent the money judgment.

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.

Steven Warren Smollens

Steven Warren Smollens


OK. I see from a comment you provided to the answer presented by the attorney from Alaska, that you do know what the case is about. The tenancy is terminated. You did not vacate on or before the "termination date." The result is a lawsuit to "evict" the business and to have a money judgment entered for the unpaid rent and for the cost per month you must pay for allowing the business to hold over. Very simply: When a landlord does an early termination of a business lease it is usually "For Cause"; meaning there is a claim that the tenant breached an obligation of tenancy and did not correct the claimed default within the time allowed by the landlord in the Notice to Cure. A commercial landlord WILL NOT take any more rent from a tenant as soon as a Notice to Cure is served; the reason is technical -- to prevent the tenant from raising a defense that the landlord waived correction of the alleged default--by taking the rent. That does not mean the business does not owe any rent that was not paid or that the landlord would not accept once the Notice to Cure was served. The law allows the landlord to wait until starting the lawsuit to collect the unpaid rent and to gain a judgment for the use and occupancy. So, it seems you knew what was going on all along. If you have a defense to the case, you cannot make the argument about why you should win or why the landlord should lose in the AVVO forum. You have to raise a defense in an Answer to the landlord's Petition. Good luck.

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer