Written by attorney James G. Dibbini

What is a Holdover Proceeding and Why Would a Landlord Commence One?

A holdover proceeding is a proceeding to evict a tenant on any grounds other than the nonpayment of rent. A landlord generally initiates a holdover proceeding when a tenant stays past the expiration of the lease without the consent of the landlord or when a tenant violates a term of the lease or rent laws (for example, if a tenants uses the apartment for illegal activity or behaves in a way that threatens the life, safety or comfort of other tenants). Because a tenant faces the permanent loss of his/her apartment, holdover proceedings are inherently more complicated than the average nonpayment proceeding where the main issue is whether or not a tenant paid his/her rent.

To commence a holdover proceeding, oftentimes a landlord must first provide a tenant with written notice that his/her actions are in violation of the lease and provide the tenant with time to cure – usually ten days (this type of notice is known as a “Notice to Cure"). Please note a landlord may skip this step if the tenant’s actions are incurable. A landlord’s next step would be to serve the tenant with written notice of termination of his/her lease (this type of notice is known as a “Notice to Vacate"). Said notice needs to provide a date by which the tenant must vacate (generally this date needs to provide the tenant with one full calendar month – if the landlord serves the notice on June 15th, the tenant will have until July 31st to vacate).

If the tenant fails to vacate after the expiration of this notice, a landlord would then need to commence the holdover action in court. A landlord must be very careful not to accept rental payments from the tenant once he/she commences this type of action. Accepting rental payments after the holdover proceeding begins could reverse the landlord’s previous actions and lead to a dismissal of the proceeding altogether. To avoid dismissal, the landlord reject any payments made by the tenant until the landlord requests and receives permission from the court to allow him/her to accept “use and occupancy" payments from the holdover tenant. Granting “use and occupancy" allows a landlord to collect the money owed without facing prejudice.

Landlords must be careful when initiating holdover proceedings. A landlord can face penalties if he/she tries to evict a tenant in a “frivolous" manner. Thus, a landlord should not bring this type of action when the landlord knows the case has no real merit as the Court may view such action as harassment and may assess sanctions.

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